40781-hlp

The Neighbors Who Feed Us:

Farmworkers and Government Policy

—

Challenges and Solutions

Alexis Guild & Iris Figueroa*

Farmworkers are not only vital to our economy and food security; they are also vital

to our communities. Farmworkers encounter numerous challenges in their daily lives that

make them among the most vulnerable and underserved populations in the country. A

broad range of policies affects farmworkers’ daily lives yet they have limited influence in

their creation and enforcement. This article summarizes challenges and solutions specific to

immigration, labor, occupational health and safety, and health-care policy. It begins with

the historical exclusion of farmworkers from labor-protective laws and then outlines the

impact of policy and proposed solutions to improve farmworkers’ living and working con-

ditions. We conclude that there need to be robust changes to federal policy to support

farmworkers to live and work with dignity and ensure a sustainable rural economy.

NTRODUCTION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

I. A

GRICULTURAL

XCEPTIONALISM

. . . . . . . . . . . . . . . . . . . . . . . . . . 159

II. W

HO ARE

ARMWORKERS

? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

III. I

MPACT OF

OLICY IN

ARMWORKER

OMMUNITIES

. . . . . . . . 164

A. Immigration Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

B. Immigration Policy Recommendations. . . . . . . . . . . . . . . . . . . . . . 167

1. Guestworker Programs Should Not Be Expanded or

Weakened . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

2. Provide Work Authorization and a Path to Citizenship

for Current Experienced Undocumented Farmworkers . . . . 167

C. Labor Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

D. Labor Policy Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

1. Amend Existing Labor Laws to Ensure Fairness for

Farmworkers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

2. Improve Enforcement of Current Labor Laws . . . . . . . . . . 172

3. Improve Farmworkers’ Access to Legal Services . . . . . . . . . . 173

E. Corporate Social Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

F. Corporate Social Responsibility Recommendations . . . . . . . . . . . 175

1. Enact Policies to Advance Legitimate Corporate Social

Responsibility Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

* Alexis Guild, MPP, is a senior health policy analyst at Farmworker Justice. Iris Figueroa,

JD, is a staff attorney at Farmworker Justice. This article was written with the support of our

Farmworker Justice colleagues. The authors would like to thank these colleagues for their

contributions: Bruce Goldstein, President; Adrienne DerVartanian, Director of Immigration

and Labor; Virginia Ruiz, Director of Occupational and Environmental Health; and Carlos

Ugarte, Director of Health Programs. Farmworker Justice is a national advocacy organization

based in Washington, D.C. Farmworker Justice seeks to empower farmworkers and their fami-

lies to improve their living and working conditions, immigration status, health, occupational

safety, and access to justice. More information can be found at www.farmworkerjustice.org.

158 Harvard Law & Policy Review [Vol. 13

2. Encourage Federal and State Corporate Social

Responsibility Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

G. Occupational Health and Safety Policy . . . . . . . . . . . . . . . . . . . . . 177

H. Occupational Health and Safety Recommendations . . . . . . . . . . 180

1. Strengthen OSHA Safety Standards for Agricultural

Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

2. Improve Pesticide Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

I. Health-Care Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

J. Health-Care Policy Recommendations. . . . . . . . . . . . . . . . . . . . . . 184

1. Prioritize Farmworkers in National Research and

Funding Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

2. Remove Immigrant Eligibility Restrictions for Federal

Health and Nutrition Programs. . . . . . . . . . . . . . . . . . . . . . . 184

3. Adequately Fund Health Programs in Farmworker

Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

ONCLUSION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

NTRODUCTION

Farmworkers are drivers of economic activity in the United States, both

through their role in the essential task of producing our nation’s food supply

and as consumers of local goods and services. They are integral parts of the

social fabric of their communities, involved in schools, churches, and other

local institutions.

Unfortunately, farmworkers encounter numerous challenges in their

daily lives that make them among the most vulnerable and underserved

populations in the country. Much of our agricultural production continues to

be extremely labor-intensive, requiring people who are able to quickly and

efficiently plant and harvest fruits and vegetables ready for market. They

work in dangerous conditions where they are exposed to pesticides and other

environmental and occupational hazards. Many workers, especially undocu-

mented workers and guestworkers,

are reluctant to assert basic workplace

rights due to fear of employer retaliation. Often, that means that workers are

discouraged from taking breaks (water, bathroom, or rest breaks) and forego

seeking medical care, even if they are injured or ill. Further, many

The term “undocumented worker” for purposes of this Article means an individual who

does not have legal authorization to work in the United States, either because she or he entered

without inspection or because she or he initially had work authorization which has now ex-

pired. The term “U.S. workers” refers to those individuals who are legally authorized to work

in the United States, including but not limited to U.S. citizens, lawful permanent residents

(LPRs), and current holders of Temporary Protected Status (TPS) or Deferred Action for

Childhood Arrivals (DACA). The term “guestworker,” in turn, means workers who are cur-

rently in the United States on temporary work visas. Though there are various different types

of guestworker visas available under U.S. immigration law, this article uses the terms

“guestworker” and “H-2A worker” interchangeably, as the H-2A visa is the main guestworker

visa used by agricultural workers.

2018] The Neighbors Who Feed Us 159

farmworkers, especially migratory

and H-2A workers, live in employer-pro-

vided housing, often in crowded, substandard conditions, isolating them

from the surrounding communities.

In addition, their immigration status

affects their ability to access services to support their families’ health. While

low-income U.S. citizens and long-term legal permanent residents may be

eligible for public benefits like food stamps and Medicaid, undocumented

and recently documented immigrants (with limited exceptions) are ineligible

for most public benefits.

The poor living and working conditions of farmworkers in the United

States are partly a result of their historical exclusion from federal and state

laws aimed to protect the livelihood and well-being of other workers. This

exclusion is commonly referred to as agricultural exceptionalism.

Policies at

the national, state, and local levels directly affect the lives of farmworker

families, yet farmworkers are often overlooked or purposely disadvantaged in

the formation and implementation of these policies. For the purpose of this

article, we will focus on immigration, labor, corporate social responsibility,

occupational health and safety, and health-care policy. Through a discussion

of policy challenges and proposed solutions, we will demonstrate the need to

prioritize farmworkers and empower them to assert their rights.

I. A

GRICULTURAL

XCEPTIONALISM

A key factor in the creation and maintenance of agricultural exception-

alism has been the economic strength of agribusiness interests and their abil-

ity to exert a significant influence on public policy. Since the American

Revolution, U.S. society has largely subscribed to an “agrarian ideal” that

views farming as the fundamental industry of society.

As a result of this

societal view, agriculture has always held a privileged place in U.S. society,

The term “migratory worker” is defined as a worker who travels or moves more than

seventy-five miles for a farm job.

See F

ARMWORKER

USTICE

, I

SSUE

RIEF

: F

ARMWORKER

OUSING

UALITY AND

EALTH

2 (2015) https://www.farmworkerjustice.org/sites/default/files/FJ%20Housing

%20Issue%20Brief%20FINAL.pdf [https://perma.cc/F58W-Q6X9].

The Personal Responsibility and Work Opportunity Act (1996) restricted eligibility for

federal public benefit programs to U.S. citizens and “qualified aliens” defined as lawful perma-

nent residents for more than five years, refugees, asylees, individuals granted a withholding of

deportation or removal, parolees for a period of at least one year, Cuban and Haitian entrants,

certain abused immigrants (including their children or their parents), and certain survivors of

trafficking. See generally T

ANYA

RODER ET AL

., N

’

MMIGRATION

., O

VER-

VIEW OF

MMIGRANT

LIGIBILITY FOR

EDERAL

ROGRAMS

2 (Dec. 2015), https://

www.nilc.org/wp-content/uploads/2015/12/overview-immeligfedprograms-2015-12-09.pdf

[https://perma.cc/MJY6-GN2E].

See, e.g., Greg Schell, Farmworker Exceptionalism under the Law: How the Legal System

Contributes to Farmworker Poverty and Powerlessness, in T

UMAN

OST OF

OOD

ARMWORKERS

’ L

IVES

, L

ABOR

AND

DVOCACY

139–66 (Charles D. Thompson, Jr. & Me-

linda F. Wiggins eds., 2002); Guadalupe T. Luna, An Infinite Distance?: Agricultural Excep-

tionalism and Agricultural Labor, 1 U. P

. J. L

. & E

. L. 487, 488–89 (1998).

See M

ARGARET

RAY

, L

ABOR AND THE

OCAVORE

: T

AKING OF A

OMPRE-

HENSIVE

OOD

THIC

21–26 (2014). See also Luna, supra note 5, at 490.

160 Harvard Law & Policy Review [Vol. 13

and, in turn, in government attention and priorities.

Even as agricultural

practices in the United States have largely shifted from subsistence to profit,

the “agrarian ideal” narrative still persists.

Agricultural employers have historically had powerful allies in Con-

gress.

They have also benefitted from a Cabinet-level agency at their ser-

vice

—

the U.S. Department of Agriculture (USDA)

—

since the late

nineteenth century.

Growers first cited agricultural labor shortages as early

as the 1890s, and since then the federal government has intervened exten-

sively in the provision of agricultural labor.

Currently, agricultural employ-

ers and agribusiness interests are actively involved in policy discussions

through a wide variety of trade associations and industry groups across dif-

ferent sectors and geographic locations

—

the American Farm Bureau Feder-

ation

and Western Growers Association

are two prominent examples.

The issue of race has also influenced agricultural policy. Colonial plant-

ers relied on African slaves for agricultural labor, and during the late nine-

teenth and twentieth centuries, farm employers relied increasingly on people

of color and immigrant labor to keep their labor costs low.

Some of the

most crucial pieces of labor rights legislation that currently exist in the

United States, including the Fair Labor Standards Act of 1938 (FLSA),

were crafted and implemented during the “New Deal” period of labor re-

forms of the 1930s. To obtain sufficient support for these reforms, President

Roosevelt and his allies had to compromise with Southern congressmen.

These compromises included exclusions of farmworkers and domestic work-

ers from the law’s protections, preserving the plantation system in the

South

—

a system that rested on the subjugation of racial minorities.

These

See G

RAY

, supra note 6, at 22.

See e.g. U.S. D

’

T OF

GRIC

., T

HREE

ECADES OF

ONSOLIDATION IN

U.S. A

GRI-

CULTURE

: R

EPORT

UMMARY

(March 2018) (noting that by 2015, 51% of the value of U.S.

farm production came from farms with at least $1 million in sales, 90% of which were family

farms (defined as farms operated by people related to one another by blood or marriage)).

See C

INDY

AHAMOVITCH

, T

RUITS OF

HEIR

ABOR

: A

TLANTIC

OAST

ARMWORKERS AND THE

AKING OF

IGRANT

OVERTY

, 1870–1945, at 11–13 (1997).

See id.

See id. at 9.

Precursors to this powerful lobbying organization existed by the late 1800s. Upon the

organization’s formal ratification in 1920, it embarked on a self-described “ambitious legisla-

tive agenda” at the federal level. See History, A

MERICAN

ARM

UREAU

EDERATION

, https://

www.fb.org/about/history [https://perma.cc/5FFV-7QQ5]. Currently, the organization’s pol-

icy department spends millions of dollars annually lobbying on a variety of agricultural issues at

both the state and federal levels. See also Ian T. Shearn, Whose Side is the American Farm Bureau

On?, T

ATION

(July 16, 2012), https://www.thenation.com/article/whose-side-american-

farm-bureau/ [https://perma.cc/RY4U-UBM9].

Western Growers has its own political action committee (PAC) with the stated aim of

“providing critical support to the industry’s friends at key moments.” Political Action Committee,

ESTERN

ROWERS

, https://www.wga.com/fight [https://perma.cc/H4SB-WGW5]. It pro-

vides funding to candidates for the U.S. Senate and U.S. House of Representatives, as well as

state-level candidates in Arizona and California. See id.

See H

AHAMOVITCH

, supra note 9, at 11–13.

See, e.g., Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agri-

cultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 O

HIO

. L.J.

2018] The Neighbors Who Feed Us 161

exclusions then continued to have a disparate impact on the racial minorities

that constituted a significant portion of the agricultural labor force during

the second half of the twentieth century

and into the twenty-first.

Cur-

rently, as detailed below, many farmworkers are Hispanic immigrants, in-

cluding immigrants who come into the country without work

authorization.

In contrast to agricultural employers, agricultural workers do not have

the same opportunities to influence and advocate for government policies.

Agricultural workers are often in an economically vulnerable position and

dependent on their employment to sustain themselves and their families.

They are afraid of retaliation against themselves, their families, or co-work-

ers, which in some cases may take the form of immigration enforcement. All

of these factors combine to make farmworkers hesitant to speak out and

advocate for themselves even when faced with potentially life-threatening

conditions. Furthermore, restrictions on the provision of legal services, such

as the requirement that federally funded legal services organizations only

serve certain categories of immigrants,

as well as farmworkers’ limited eco-

nomic resources, mean that many farmworkers are unable to access the legal

services they need in order to fully exercise their rights.

95, 96 (2010) (“During the New Deal Era, the statutory exclusion of agricultural and domestic

employees was well-understood as a race-neutral proxy for excluding blacks from statutory

benefits and protections made available to most whites.”) and Marc Linder, Farm Workers and

the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 T

. L. R

. 1335,

1336 (1987) (“As a result, New Deal legislation, including the FLSA, became infected with

unconstitutional racial motivation.”). See also H

AHAMOVITCH

, supra note 9, at 11 (“Propo-

nents of the notion of a racialist state have suggested that the New Deal did not just leave Jim

Crow untouched but actually exacerbated racial inequality.”)

See e.g. Linder, supra note 15, at 1342 (noting that while Hispanics and blacks ac-

counted for less than 15% of employed persons in the early 1980s, they accounted for at least

half of all agricultural labor); see also D

EBORAH

OHEN

, B

RACEROS

: M

IGRANT

ITIZENS

AND

RANSNATIONAL

UBJECTS IN THE

OSTWAR

NITED

TATES AND

EXICO

(2011)

(detailing the history of “Braceros,” millions of Mexican workers brought to the United States

to do agricultural labor from the mid-nineteen-forties to the mid-nineteen-sixties) and Bruce

Goldstein & Jessica Felix-Romero, Food Justice: Combating Racism in the Agricultural System,

IBERAL

DUC

., Fall 2016, at 56–57 (summarizing the history of discrimination against peo-

ple of color in the agricultural industry).

Within the fifteen-year period from 1999 to 2014, between 75 and 90% of agricultural

workers surveyed self-identified as Hispanic. See Agricultural Worker Tables: Demographic Char-

acteristics: Other Demographics, N

ATIONAL

GRICULTURAL

ORKERS

URVEY

, https://

naws.jbsinternational.com/table/2/3#top [https://perma.cc/NT8B-AKP4].

According to the most recent NAWS data, approximately half of all agricultural work-

ers are undocumented. See O

FFICE OF

OLICY

. & R

ESEARCH

, U.S. D

’

T OF

ABOR

INDINGS FROM THE

ATIONAL

GRICULTURAL

ORKERS

URVEY

(NAWS) 2013-2014,

at 38 (Dec. 2016) [hereinafter DOL NAWS 2013-2014], https://www.doleta.gov/agworker/

pdf/NAWS_Research_Report_12_Final_508_Compliant.pdf [https://perma.cc/L56W-

82P6].

Federally funded legal services programs receive funding from the Legal Services Cor-

poration, an independent nonprofit established by Congress in 1974. Such programs are re-

stricted to providing legal services to certain categories of immigrants. For more information

on immigrant eligibility, see generally N

’

MMIGRATION

., LSC-F

UNDED

E-

GAL

ERVICES

(Mar. 2016), https://www.nilc.org/wp-content/uploads/2016/03/LSC-

funded_services_rev-2016-03.pdf [https://perma.cc/U2PU-EAWD].

162 Harvard Law & Policy Review [Vol. 13

To this day, farmworkers remain excluded from federal overtime and

certain child labor requirements under the FLSA, many state minimum

wage laws and workers’ compensation laws, and many occupational safety

and health protections. The exclusions from labor protections that agribusi-

nesses have achieved contribute to poor working conditions, lower wages,

and less economic stability for workers and their families,

further limiting

farmworkers’ ability to influence policy and enforce existing law and exacer-

bating the specific challenges discussed in this article.

II. W

HO ARE

ARMWORKERS

Before delving into relevant policies, it is important to understand who

are our nation’s farmworkers and their families. Though there is insufficient

data on the exact number of individuals participating in agricultural work,

there are currently an estimated 2.4 million farmworkers in the United

States.

According to the National Agricultural Workers Survey (NAWS), a

survey of U.S. crop workers conducted by the U.S. Department of Labor,

about 60% of these workers are married and approximately the same per-

centage have children.

The median farmworker parent has two minor chil-

dren living in his or her household.

According to the NAWS, approximately 80% of U.S. farmworkers are

Latino, with the vast majority (68%) born in Mexico.

Only 27% of

farmworkers were born in the United States.

Just under half of all workers

(47%) lack work authorization,

though this is likely an underestimate.

Some estimates are as high as 70%.

Approximately 31% of workers are U.S.

citizens and 21% are legal permanent residents.

Only 31% of farmworkers

report being able to speak English well.

Spanish tends to be the dominant

language (74%),

though there are also farmworkers from regions and coun-

See generally DOL NAWS 2013-2014, supra note 18, at 38.

See Philip Martin, Immigration and Farm Labor: Policy Options and Consequences, 95

. J. A

GRIC

. E

CON

. 470 (2013).

See DOL NAWS 2013-2014, supra note 18, at 54.

See id.

See id. at 52.

See id.

There are few data sets about the demographic characteristics of farmworkers. Data on

immigration status is especially difficult to obtain. The NAWS, while one of the better sources

for farmworker data, has its own shortcomings. Undocumented workers are more reluctant to

share their information with researchers. See, e.g., Alicia Parlapiano, Are You a U.S. Citizen?

How a 2020 Census Question Could Impact States, N.Y. T

IMES

(Mar. 30, 2018), https://

www.nytimes.com/interactive/2018/03/30/us/impact-of-citizenship-question-on-census.html

[https://perma.cc/R2M2-HJWU].

See Alfonso Serrano, Bitter Harvest: U.S. Farmers Blame Billion-Dollar Losses on Immi-

gration Laws, T

IME

(Sept. 21, 2012), http://business.time.com/2012/09/21/bitter-harvest-u-s-

farmers-blame-billion-dollar-losses-on-immigration-laws [https://perma.cc/BZ65-8G33].

See DOL NAWS 2013-2014, supra note 18, at 12.

See id. at 56.

See id.

2018] The Neighbors Who Feed Us 163

tries where other languages are primarily spoken, such as Haiti and indige-

nous communities of Mexico and Guatemala.

Historically, many workers and their families were migratory, moving

with the harvest. Today, only about 16% of workers are migratory.

Some

farmworker families continue to migrate, though they are more likely to set-

tle in a community.

There are many reasons why workers choose to settle

in a community, including the instability of migratory work, immigration

laws and policy, and family. Many farmworker families have children who

are enrolled in public schools.

For these children, stability promotes aca-

demic success.

The majority of farmworkers are seasonal workers.

Over the course of

a year, they may work on several farms near their home or they may harvest

and plant during peak season and work in other industries, such as construc-

tion, during the off season. There are some types of agricultural work, such

as tending to vineyards or dairy work that require year-round labor.

Currently, a growing number of the farmworker population is in the

United States on temporary non-immigrant H-2A visas.

While fewer than

10% of farmworkers are H-2A workers, their number has grown signifi-

cantly over the last ten years from 76,814 positions certified in FY 2007

200,049 in FY 2017.

Migratory workers, including H-2A workers who

come to the United States to work short-term jobs in agriculture, are more

isolated and vulnerable than those who are settled in local communities.

These workers tend to live in employer-provided housing on employer prop-

See id. at ii, 3.

See id. at 53.

See id at 53, 66.

See Richard Mines, Children of Immigrants: Health, Adjustment, and Public Assistance, in

HILDREN OF

MMIGRANTS

: H

EALTH

, A

DJUSTMENT

AND

UBLIC

SSISTANCE

Chapter 12

(Nat’l Research Council & Inst. of Medicine Comm. on the Health & Adjustment of Immi-

grant Children & Families; Hernandez DJ, ed., 1999), https://www.ncbi.nlm.nih.gov/books/

NBK224440/ [https://perma.cc/5UDW-EF2P].

See Judy Wiseman, Barriers to Education for Children of Migrant Farm Workers, 13 S

OAQUIN

GRIC

. L. R

. 49, 49–50 (2003).

See DOL NAWS 2013-2014, supra note 18, at 5.

See generally O

FFICE OF

OREIGN

ABOR

ERTIFICATION

, U.S. D

’

T OF

ABOR

, H-

2A A

NNUAL

ERFORMANCE

EPORTS

, (Jan. 23, 2018) [hereinafter OFLC, P

ERFORMANCE

EPORTS

], https://www.foreignlaborcert.doleta.gov/performancedata.cfm [https://perma.cc/

TNV8-W34F].

See O

FFICE OF

OREIGN

ABOR

ERTIFICATION

, U.S. D

’

T OF

ABOR

, F

OREIGN

ABOR

ERTIFICATION

ERFORMANCE

EPORT

: O

CTOBER

1, 2006 – S

EPTEMBER

30, 2007,

at 25 (2007), https://www.foreignlaborcert.doleta.gov/pdf/FY2007_OFLCPerformanceRpt.

pdf [https://perma.cc/JS6B-3S4M].

See O

FFICE OF

OREIGN

ABOR

ERTIFICATION

, U.S. D

’

T OF

ABOR

, S

ELECTED

TATISTICS

FY 2017, https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2017/

H-2A_Selected_Statistics_FY2017.pdf [https://perma.cc/PRJ8-4UFJ].

See H

UMAN

IGHTS

ATCH

ULTIVATING

EAR

: T

ULNERABILITY OF

MMI-

GRANT

ARMWORKERS IN THE

EXUAL

IOLENCE AND

EXUAL

ARASSMENT

15–19 (2012).

164 Harvard Law & Policy Review [Vol. 13

erty.

Many lack their own form of transportation, relying on their em-

ployer, a labor contractor, or other workers for rides into town.

Agriculture routinely ranks among the most dangerous occupations in

the United States. Fatalities among workers in the agricultural sector rank

first among workers in all industries.

In 2016, 260 farmworkers involved in

crop production suffered fatal injuries.

It is estimated that reporting sys-

tems annually miss an average of 77% of occupational injuries and illnesses

in agriculture.

Poverty is persistent in farmworker communities. Most farmworkers

earn low annual incomes; 30% of farmworker families have an annual in-

come below the federal poverty level.

Many work on a piece rate:

the

amount they earn corresponds to the number of containers filled or pounds

harvested. Additionally, few farmworkers receive fringe benefits. Only 35%

of farmworkers reported having health insurance with only 31% reporting

that they receive employer-provided health insurance.

III. I

MPACT OF

OLICY IN

ARMWORKER

OMMUNITIES

A. Immigration Policy

Immigration policy plays a fundamental role in the current context and

challenges of agricultural labor in the United States. Throughout the twenti-

eth century, foreign workers proved essential for agricultural labor in rural

communities across the United States, and that trend has continued into the

Employers who use the H-2A program are required to provide free housing to their

workers who “cannot reasonably return to their permanent residence at the end of the work

day.” See O

FFICE OF

OREIGN

ABOR

ERTIFICATION

, U.S. D

’

T OF

ABOR

, E

MPLOYER

UIDE TO

ARTICIPATION IN THE

H-2A T

EMPORARY

GRICULTURAL

ROGRAM

10 (Jan.

2012), https://www.foreignlaborcert.doleta.gov/pdf/h-2a_employer_handbook.pdf [https://

perma.cc/878Q-EDGY].

According to the Dept. of Labor’s Bureau of Labor Statistics, agriculture’s fatal work

injury rate was 23.2 per 100,000 full-time equivalent employees (FTEs). This rate is the high-

est fatality rate compared to other industries such as construction, mining, and transportation.

See B

UREAU OF

ABOR

TATISTICS

, U.S. D

’

T OF

ABOR

, N

UMBER AND

ATE OF

ATAL

ORK

NJURIES

, B

NDUSTRY

, 2016, https://www.bls.gov/charts/census-of-fatal-occupa-

tional-injuries/number-and-rate-of-fatal-work-injuries-by-industry.htm [https://perma.cc/

7Y47-7DLJ]. See also Agricultural Safety, N

ATIONAL

NSTITUTE OF

CCUPATIONAL

AFETY

AND

EALTH

(Apr. 12, 2018), https://www.cdc.gov/niosh/topics/aginjury/default.html

[https://perma.cc/JT9Q-33TX].

See B

UREAU OF

ABOR

TATISTICS

, U.S. D

’

T OF

ABOR

, C

ENSUS OF

ATAL

C-

CUPATIONAL

NJURIES

, 2016, at 19–20 (2016), https://www.bls.gov/iif/oshwc/cfoi/

cfch0015.pdf [https://perma.cc/TXB6-EYUB].

See J. Paul Leigh et al., An Estimate of the U.S. Government’s Undercount of Nonfatal

Occupational Injuries and Illnesses in Agriculture, 24 A

NNALS OF

PIDEMIOLOGY

254, 257

(2014).

See DOL NAWS 2013-2014, supra note 18, at iii.

See id. at 22.

See id. at 42.

2018] The Neighbors Who Feed Us 165

twenty-first century.

As discussed earlier in the article, the vast majority of

U.S. farmworkers are immigrants.

Unfortunately, the increased focus on

indiscriminate immigration enforcement, rise in deportations, and other re-

cent immigration enforcement actions

have worsened an already untenable

situation for farmworkers and their families and created a tangible fear in

farmworker communities throughout the country, exacerbating their vulner-

ability and isolation. Due to this increased immigration enforcement,

farmworkers and their families are hesitant to leave their homes for fear of

encountering immigration enforcement. Therefore, they are less likely to en-

gage in community activities, run errands, or attend medical appointments.

The increasingly hostile attitude toward immigrants instills such fear that

many farmworker families are reluctant to access government programs and

benefits that they may need and for which they may be eligible.

Agricultural employers are also concerned about what heightened im-

migration enforcement may mean for their labor force. As a result of these

factors and others, agricultural employers are increasingly turning to the H-

2A temporary agricultural worker visa program to find workers.

The H-2A

temporary agricultural worker program is a labor certification program that

permits agricultural employers who are unable to find U.S. workers to apply

for foreign workers on temporary work permits.

The H-2A program does

not have an annual cap on the number of visas issued, and it has roughly

tripled in size in the last decade.

The H-2A program is inherently flawed:

the workers are tied to their

employer and dependent on them for present and future employment. H-2A

workers hold a temporary non-immigrant status with no opportunity or path

to become citizens. Although recruitment fees are illegal under the program,

See C

ONG

. R

ESEARCH

ERV

., F

ARM

ABOR

HORTAGES AND

MMIGRATION

1 (Nov.

9, 2009), https://www.everycrsreport.com/reports/RL30395.html [https://perma.cc/L2R9-

AK4K].

According to NAWS, in 2013–2014 approximately 73% of all farmworkers were born

outside the United States. The overwhelming majority (68%) were born in Mexico. See DOL

NAWS 2013-2014, supra note 18, at i.

See, e.g., U.S. I

MMIGRATION AND

USTOMS

’

, U.S. D

’

T OF

OMELAND

ISCAL

EAR

2017 ICE E

NFORCEMENT AND

EMOVAL

PERATIONS

EPORT

1–2 (2017),

https://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf

[https://perma.cc/435J-24RK].

In fiscal year 2017, over 200,000 H-2A worker positions were certified on the program,

and applications increased by 14.9% from fiscal year 2016. See O

FFICE OF

OREIGN

ABOR

ERTIFICATION

, U.S. D

’

T OF

ABOR

, H-2A T

EMPORARY

GRICULTURAL

ABOR

ERTI-

FICATION

ROGRAM

- S

ELECTED

TATISTICS

, FY 2017, https://www.foreignlaborcert.doleta.

gov/pdf/PerformanceData/2017/H-2A_Selected_Statistics_FY2017.pdf [https://perma.cc/

BSP5-9Q7M].

See 8 U.S.C. § 1101(a)(h)(ii)(A) (Supp. II 2014).

See O

FFICE OF

OREIGN

ABOR

ERTIFICATION

, U.S. D

’

T OF

ABOR

, F

OREIGN

ABOR

ERTIFICATION

ERFORMANCE

EPORT

CTOBER

1, 2006 – S

EPTEMBER

30, 2007

22 (2007); id. at 25; see also OFLC, P

ERFORMANCE

EPORTS

, supra note 38.

See F

ARMWORKER

USTICE

, N

AY TO

REAT A

UEST

: W

HY THE

H-2A A

GRI-

CULTURAL

ISA

ROGRAM

AILS

U.S.

AND

OREIGN

ORKERS

12 (2011), https://www.

farmworkerjustice.org/sites/default/files/documents/7.2.a.6%20No%20Way%20To%20Treat%

20A%20Guest%20H-2A%20Report.pdf [https://perma.cc/X73V-PMXA].

166 Harvard Law & Policy Review [Vol. 13

many H-2A workers are charged fees by recruiters in their countries of ori-

gin, meaning that they have already accumulated a significant debt by the

time they arrive in the United States, exacerbating their position of vulnera-

bility.

Once they arrive at the job, workers are often expected to satisfy

productivity requirements that test the limits of human endurance.

The H-2A program includes limited protections focused on U.S. work-

ers’ rights, such as recruitment obligations for U.S. workers, a minimum

wage requirement, and employer-provided housing and transportation to of-

fer protections against the displacement of U.S. workers and to prevent ad-

verse effects on the wages and working conditions of U.S. workers. Many of

these protections were developed in response to abuses that previously ex-

isted under the Bracero guestworker program.

With increased use of the H-2A program have come agribusiness at-

tempts to strip away the modest but critically important protections in the

current program, including efforts to limit government oversight, eliminate

many recruitment requirements, lower wage standards, and shift the costs of

housing and transportation to workers,

all of which would result in down-

ward pressure on all workers’ wages and working conditions with increased

See, e.g., I

’

ABOR

ECRUITMENT

ORKING

., T

MERICAN

REAM

FOR

ALE

: A B

LUEPRINT FOR

NDING

NTERNATIONAL

ABOR

ECRUITMENT

BUSE

(2013), https://fairlaborrecruitment.files.wordpress.com/2013/01/final-e-version-ilrwg-re-

port.pdf [https://perma.cc/V4R7-5KFN] and J

ORNALEROS

AFE

, M

EXICAN

H-2A

ARMWORKERS IN THE

U.S.: T

NVISIBLE

ORKFORCE

14 (2010-2013), http://

www.globalworkers.org/sites/default/files/EXECUTIVE%20SUMMARY%20Jornaleros%20

SAFE.pdf [https://perma.cc/M323-UWMV] (“42.6% of those interviewed for this study re-

ported having to pay to receive an offer or obtain a job. In spite of the fact that it is illegal to

charge someone for hiring them, almost half of all contractors continue to do so.”).

One way in which employers impose these productivity standards is through the use of

“piece rates,” meaning that workers are not paid hourly wages, but by the amount of a given

crop that they pick. F

RITZ

M. R

OKA

, C

OMPENSATING

ARM

ORKERS

HROUGH

IECE

ATES

: I

MPLICATIONS ON

ARVEST

OSTS AND

ORKER

ARNINGS

(2015), http://

edis.ifas.ufl.edu/fe792 [https://perma.cc/8J2G-BE4W]. For example, a recent H-2A order

stated that workers are expected to cut 100 sticks of tobacco per hour. Often, though produc-

tion standards are not explicitly stated in their job orders, workers are threatened with losing

their jobs if they do not pick a certain amount or at a certain rate. Id.

During World War II, the U.S. Congress responded to agricultural growers’ worries

about a worker shortage by approving the temporary entry of migrants from Mexico to do

agricultural work. This program, which became known as the “Bracero” program, became the

largest guestworker program in U.S. history, employing more than four million Mexican work-

ers. It was characterized by severe labor abuses and was abolished in 1964. For more informa-

tion on the Bracero program, see generally B

RACERO

ISTORY

RCHIVE

, http://

braceroarchive.org/ [https://perma.cc/MVE4-282X]; E

RNESTO

ALARZA

, M

ERCHANTS OF

ABOR

: T

EXICAN

RACERO

TORY

(1964); K

ITTY

ALAVITA

, I

NSIDE THE

TATE

RACERO

ROGRAM

, I

MMIGRATION

AND THE

I.N.S. (1992); E

RASMO

AMBOA

EXICAN

ABOR AND

ORLD

II: B

RACEROS IN THE

ACIFIC

ORTHWEST

, 1942-

1947 (2000); D

EBORAH

OHEN

, B

RACEROS

: M

IGRANT

ITIZENS AND

RANSNATIONAL

UBJECTS IN THE

OSTWAR

NITED

TATES AND

EXICO

(2001); J

OSE

ADOLPHO

ACOBO

, L

RACEROS

: M

EMORIES OF

RACERO

ORKERS

, 1942-1964 (2004).

See F

ARMWORKER

USTICE

, R

. G

OODLATTE

’

“A

GRICULTURAL

UESTWORKER

” W

OULD

ONDEMN

GRICULTURAL

ORKERS TO

XPLOITATIVE

ORKING

ONDI-

TIONS

4 (2018), https://www.farmworkerjustice.org/sites/default/files/Goodlatte%20Fact%20

Sheet%20-%20UpdatedFeb2018.pdf [https://perma.cc/37B2-9TGF].

2018] The Neighbors Who Feed Us 167

displacement of domestic workers and a likelihood of abuses of vulnerable

guestworkers.

There are also continued efforts to expand the H-2A program to year-

round industries and to create a new, more expansive guestworker program

including sectors beyond what are traditionally considered agriculture. This

proposed expansion of the H-2A program to year-round industries would

likely result in displacement of the current workforce and lower wages for

agricultural workers in these sectors, including dairy and poultry, among

others.

The H-2A program currently focuses on temporary or seasonal ag-

ricultural work because it is premised on the idea that it may be difficult to

find U.S. workers for seasonal jobs that yield lower annual incomes than

year-round jobs. That same logic does not apply to year-round employment.

These proposed changes to the H-2A guestworker program, as well as

the trend of increasing use of the program, could result in the massive dis-

placement of farmworkers who have been doing agricultural work for years

and even decades, and who have established themselves in the rural commu-

nities in which they work. In turn, the agricultural guestworkers replacing

them would have to accept low wages and poor working conditions, while

being separated from their spouses and children and never having the oppor-

tunity to join the communities where they work or the society they feed.

B. Immigration Policy Recommendations

1. Guestworker Programs Should Not Be Expanded or Weakened.

—

The

H-2A program is fundamentally flawed. It allows foreign workers to be ex-

ploited, while at the same time negatively impacting the job opportunities,

wages, and working conditions of U.S. workers. If eliminating the H-2A

guestworker program is not feasible for now, the focus should be on re-

forming the program based on labor migration program models that shift

control over the labor migration process from employers to workers, elevate

labor standards for all agricultural workers, respond to established labor mar-

ket needs, respect family unity, and ensure equity and access to justice.

Workers should have the freedom to choose and switch employers and the

ability to obtain a path to U.S. citizenship, thus reducing the employer con-

trol and related worker vulnerability currently present in the H-2A and other

guestworker programs. At the very least, the limited wage and labor protec-

tions that are currently in the program should be maintained and effectively

enforced and the program should not be expanded to additional job catego-

ries or occupations, such as year-round work or non-agricultural jobs.

2. Provide Work Authorization and a Path to Citizenship for Current Ex-

perienced Undocumented Farmworkers.

—

Instead of expanding abusive

See Daniel Costa & Jennifer Rosenbaum, Using the H-2A Guestworker Program for Year-

round Agricultural Jobs Would Lower Wages for Farmworkers, E

CON

. P

’

NST

.: W

ORKING

CON

. B

LOG

(Mar. 19, 2018, 12:30 PM), https://www.epi.org/blog/using-the-h-2a-guest

worker-program-for-year-round-agricultural-jobs-would-lower-wages-for-other-farmworkers/

[https://perma.cc/STQ2-YHSU].

168 Harvard Law & Policy Review [Vol. 13

guestworker programs, the first step towards a modern agricultural labor sys-

tem must be to ensure that the farmworkers who are currently here are given

authorization to work in the United States as well as a pathway toward earn-

ing permanent immigration status and citizenship. Farmworkers should not

be limited to accepting undocumented status or mere temporary work per-

mits. Current undocumented farmworkers and their family members should

be given a viable path to citizenship, a policy change that would recognize

the reality of agricultural labor in this country.

Farmworkers should have

the same economic and democratic freedoms that apply to other residents

and workers in the United States and be able to fully participate in the com-

munities where they live.

In May 2017, Senator Dianne Feinstein of California and Representa-

tive Luis Gutierrez of Illinois introduced the Agricultural Worker Program

Act of 2017.

The bill would establish a path to lawful residency and citi-

zenship for undocumented farmworkers who have been consistently em-

ployed in U.S. agriculture and meet other requirements.

This proposal is

known colloquially as the “blue card” program because eligible workers can

first earn a “blue card” and then apply for a “green card” after continuing to

work in agriculture for three to five years.

A similar program was included

in a 2013 comprehensive immigration bill that passed in the Senate

but

unfortunately was never brought to a vote in the House.

Some of the most vocal Congressional opponents of a pathway to citi-

zenship for agricultural workers also oppose a pathway to citizenship for

other undocumented individuals in the United States. An often cited reason

for opposing a pathway to citizenship for undocumented workers is that im-

migrant workers will take jobs away from domestic U.S. workers.

The irony

behind this argument is that providing a pathway to citizenship would actu-

ally limit employers’ current ability to exploit workers’ undocumented status

for lower wages and working conditions,

thus improving labor standards

for all workers and leveling the playing field for employers. Reform of our

Farmworkers interviewed by the NAWS in 2013–2014 had an average of 16 years of

U.S. farm work. See DOL NAWS 2013-2014, supra note 18, at 29.

See Agricultural Worker Program Act, S. 1034, 115th Congress (2017); Agricultural

Worker Program Act, H.R. 2690, 115th Congress (2017).

See id.

See Border Security, Economic Opportunity, and Immigration Modernization Act,

S.744, 113th Congress (2013) (the bill was passed in the Senate by a 68–32 vote).

See Brennan Hoban, Do Immigrants “Steal” Jobs from American Workers?, B

ROOKINGS

(Aug. 24, 2017), https://www.brookings.edu/blog/brookings-now/2017/08/24/do-im-

migrants-steal-jobs-from-american-workers/ [https://perma.cc/E82B-RM2H].

A 2018 report by the Migration Policy Institute notes that immigrants are twice as

likely as native born workers to be employed in industries where violations of core labor stan-

dards are widespread. Current immigration law undermines workplace protections by deterring

foreign-born workers from filing complaints. See A

NDREW

LMORE

& M

UZAFFAR

HISHTI

IGRATION

OLICY

NST

., S

TRATEGIC

EVERAGE

: U

SE OF

TATE AND

OCAL

AWS TO

NFORCE

ABOR

TANDARDS IN

MMIGRANT

-D

ENSE

CCUPATIONS

1 (Mar. 2018), https:/

/www.migrationpolicy.org/sites/default/files/publications/StateLaborStandardsEnforcement_

FinalWeb.pdf [https://perma.cc/ZH2L-R3FN].

2018] The Neighbors Who Feed Us 169

current immigration system is a necessary stepping stone not just towards

stabilizing the agricultural labor force but also towards addressing some of

the myriad challenges faced by farmworkers. The uncertainty and vulnerabil-

ity of undocumented status further exacerbates the severe challenges facing

farmworkers in the other areas discussed below.

C. Labor Policy

As discussed earlier, farmworkers are excluded from many of the pro-

tections afforded to workers in other sectors of the U.S. economy due to a

history of agricultural exceptionalism.

Discrimination in U.S. immigration

and labor laws has persisted, depriving farmworkers of fundamental human

and democratic rights, including basic workplace rights such as freedom of

association.

Some of the protections that farmworkers have been excluded

from include organizing and bargaining rights in the NLRA and certain

protections of the FLSA. Farmworkers are excluded from the NLRA, which

forbids employer retaliation against workers for joining, organizing, or sup-

porting a labor union. The NLRA also establishes a structure for unions and

employers to engage in collective bargaining. However, since its enactment,

the NLRA has specifically excluded agricultural workers, thus depriving

them of the law’s protections.

The FLSA, in turn, guarantees most workers a minimum hourly wage

and also requires that most employees be paid a premium for overtime

work.

Though the FLSA now applies the minimum wage provisions to

most agricultural workers, many agricultural workers employed on small

farms and certain other farms are excluded from this provision.

Farmworkers are also still excluded from the right to overtime pay.

This is

particularly significant because farmworkers’ hours vary by season, crop, and

task, and most farmworkers work an average of more than forty hours per

week,

yet they are not compensated above their base wage rate for these

extra hours. The lack of an overtime premium leads some employers to re-

quire an extraordinarily high number of work hours per week, which can

lead to injury caused by fatigue and interference with family obligations.

Similarly, FLSA’s child labor provisions offer less protection to those

working in agriculture than in other industries. For most jobs, the minimum

See infra “Agricultural Exceptionalism.”

See H

UMAN

IGHTS

ATCH

, U

NFAIR

DVANTAGE

: W

ORKERS

’ F

REEDOM OF

SSO-

CIATION IN THE

NITED

TATES UNDER

NTERNATIONAL

UMAN

IGHTS

TANDARDS

173–78 (Aug. 2000), https://www.hrw.org/reports/pdfs/u/us/uslbr008.pdf [https://perma.cc/

9XZ4-5LPX].

See id. at 14; see also Michael H. LeRoy & Wallace Hendricks, Should Agricultural La-

borers Continue to be Excluded from the National Labor Relations Act? 48 E

MORY

L.J. 489, 490

(1999).

See 29 U.S.C. §§ 206, 207(a) (2012).

See 29 U.S.C. § 213(a)(6) (2012 & Supp. II 2014).

See 29 U.S.C. § 213(b)(12) (2012 & Supp. II 2014).

See DOL NAWS 2013-2014, supra note 18, at 20–22.

170 Harvard Law & Policy Review [Vol. 13

age at which a person can work is sixteen years old (with few exceptions);

in agriculture, a highly hazardous industry, the minimum age at which a

person can work is fourteen years old (with many exceptions).

An esti-

mated 400,000–500,000 children between the ages of twelve and seventeen

are working in U.S. agriculture.

The principal federal labor law for farmworkers is the Migrant and Sea-

sonal Agricultural Worker Protection Act (“AWPA”).

Congress enacted

AWPA in 1983 to replace an earlier law, the Farm Labor Contractor Regis-

tration Act of 1963 (“FLCRA”). FLCRA focused on regulating farm labor

contractors (“FLCs”),

who were notorious for refusing to pay workers their

wages and subjecting farmworkers to debt peonage and even slavery. In en-

acting AWPA, Congress established labor law obligations on the part of the

growers who employ farmworkers even if the growers use the services of

FLCs.

These protections are particularly significant due to the widespread

use of FLCs in agricultural employment, which poses unique challenges for

workers’ ability to obtain redress for labor violations.

The AWPA includes the following requirements: agricultural employ-

ers must disclose terms of employment at the time of recruitment and com-

ply with those terms;

employers, when using FLCs to recruit, supervise, or

transport farmworkers, must confirm that the FLCs are registered with and

licensed by the U.S. Department of Labor;

providers of housing to

farmworkers must meet local and federal housing standards;

and transport-

ers of farmworkers must use insured vehicles that meet basic federal safety

standards.

However, AWPA specifically excludes H-2A workers

and, like

See 29 U.S.C. § 203(l) (2012).

See 29 U.S.C. § 213(c)(1)(C) (2012 & Supp. II 2014); see also H

UMAN

IGHTS

ATCH

, F

INGERS TO THE

ONE

: U

NITED

TATES

AILURE TO

ROTECT

HILD

ARMWORKERS

(June 2, 2000), https://www.hrw.org/report/2000/06/02/fingers-bone/united-

states-failure-protect-child-farmworkers [https://perma.cc/9L3E-C46Y].

See A

’

N OF

ARMWORKER

PPORTUNITY

ROGRAMS

, C

HILDREN IN THE

IELDS

ACTS

HOULD

NOW

4 (2018), https://www.mediavoicesforchildren.org/mvc-

commentary/2018/2/6/children-in-the-fields-the-facts-you-should-know [https://perma.cc/

3GF2-B7A3].

See 29 U.S.C. § 1801 et seq. (2012).

For the purposes of this paper, the term “farm labor contractor,” or “FLC,” refers to

labor intermediaries, often called “crewleaders,” who fulfill a variety of roles, including recruit-

ing and hiring job applicants, transporting and housing workers, and supervising workers in

the field. Some labor contractors are quite large and have subcontractors. Under AWPA, the

term “farm labor contractor” is defined as “any person, other than any agricultural employer, an

agricultural association, or an employee of an agricultural employer or agricultural association,

who, for any money or other valuable consideration paid or promised to be paid, performs any

farm labor contracting activity.” See 29 U.S.C. § 1802(7).

See 29 U.S.C. § 1822 (2012).

See 29 U.S.C. § 1822(c) (2012).

See 29 U.S.C. § 1811 (2012).

See 29 U.S.C. § 1823 (2012).

See 29 U.S.C. § 1841 (2012).

See 29 U.S.C. § 1802(8)(b)(ii) (2012).

2018] The Neighbors Who Feed Us 171

FLSA, it does not apply to small employers, although this exemption does

not include farm labor contractors.

The farm labor contracting system poses a significant challenge for de-

fending farmworkers’ labor rights. Some farm operators hope to avoid com-

pliance with labor laws by hiring FLCs, crew leaders, or other intermediaries

and denying that they are the “employer” of the farmworkers in their fields.

Congress has adopted a broad definition of employment relationships in

FLSA and AWPA so that a farmworker is, in most cases, an “employee,”

and a grower using the services of an FLC is responsible as a joint employer

with the FLC.

Joint employer liability helps reduce abuses associated with

the subcontracting of labor by requiring a grower to share responsibility for

compliance with employment law obligations. However, there are currently

efforts underway to undo this broad definition of employment relationships,

making it far more difficult, if not impossible, to hold more than one busi-

ness as an employer of a worker.

Such proposals to end joint employer

status would encourage businesses to use FLCs that provide workers at low

cost by violating basic labor protections.

Another issue, and one that affects farmworker women especially, is the

high prevalence of sexual harassment and assault in agricultural work. Agri-

cultural work is covered by the Equal Employment Opportunity Act

(“EEOA”), also known as Title VII, which protects workers from unlawful

sex discrimination, including sexual harassment in the workplace.

How-

ever, investigations by news agencies and human rights organizations have

highlighted this serious problem in agricultural work.

As an example of the

prevalence of this problem, as part of the “#MeToo” movement

—

a recent

effort to highlight the prevalence of sexual assault and harassment across

industries

—

in November 2017 farmworker women sent an open letter to

Hollywood actresses noting that they shared a common experience of being

preyed upon by individuals in positions of power.

Many farmworker wo-

men continue to endure this behavior for fear of retaliation, including the

fear of being reported to immigration authorities and job loss for themselves

or their family members who may work with the same employer.

See 29 U.S.C. § 1803(a)(2) (2012).

See Bruce Goldstein, Marc Linder, Laurence E. Norton II & Catherine K. Ruckel-

shaus, Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the

Statutory Definition of Employment 46 UCLA L. R

. 983, 984 (1999).

See Save Local Business Act, H.R. 3441, 115th Congress (2017).

See 42 U.S.C. § 2000e (2012) (defining industries and employers for purposes of the

Equal Employment Opportunities subchapter of Title 42).

See generally Frontline: Rape in the Fields (PBS television broadcast June 25, 2013),

https://www.pbs.org/wgbh/frontline/film/rape-in-the-fields/ [https://perma.cc/J4AT-ABEE];

see also, e.g., H

UMAN

IGHTS

ATCH

, C

ULTIVATING

EAR

: T

ULNERABILITY OF

MMI-

GRANT

ARMWORKERS IN THE

U.S.

EXUAL

IOLENCE AND

EXUAL

ARASSMENT

(2012), https://www.hrw.org/sites/default/files/reports/us0512ForUpload_1.pdf [https://

perma.cc/4F4T-UJTZ].

See Alianza Nacional de Campesinas, Editorial, 700,000 Female Farmworkers Say They

Stand With Hollywood Actors Against Sexual Assault, T

IME

(Nov. 10, 2017), http://time.com/

5018813/farmworkers-solidarity-hollywood-sexual-assault/ [https://perma.cc/DV7D-

XDCA].

172 Harvard Law & Policy Review [Vol. 13

Beyond federal labor laws, many state laws also discriminate against

farmworkers by excluding them from important protections such as the min-

imum wage, overtime, and workers’ compensation.

Some states have en-

acted state laws to provide farmworkers with some of the labor rights

enjoyed by other workers. Most notably, California is unique in providing

farmworkers with protection to organize labor unions and engage in collec-

tive bargaining under the state’s Agricultural Labor Relations Act

(“ALRA”).

Additionally, in 2016, California passed a law that will gradu-

ally extend overtime pay to agriculture for more than forty hours of work, a

significant victory for farmworkers.

D. Labor Policy Recommendations

1. Amend Existing Labor Laws to Ensure Fairness for Farmworkers.

—

We should continue to strive to achieve basic fairness in our labor system

and undo the discriminatory legacy of agricultural exceptionalism. The Fair

Labor Standards Act (FLSA) should be amended to: raise the federal mini-

mum wage and ensure coverage for all farmworkers of the minimum wage

protections; extend equal child labor prohibitions to agriculture; and end the

exclusion of agricultural workers from overtime pay.

The Migrant and Seasonal Agricultural Worker Protection Act

(“AWPA”) should be strengthened and updated, including by increasing the

outdated levels of damages a court can impose on defendants. Employers

should not be able to incorporate violations of farmworkers’ rights as a lim-

ited cost of doing business. In addition, AWPA’s protections should extend

to H-2A workers and all farmworkers, regardless of the size of their employ-

ers. The law’s regulation of FLCs and their use by farm owners should be

strengthened to reduce abuses. In addition, the law should grant

farmworkers the right to engage in concerted activity for their mutual aid

and protection free from retaliation, similar to the right granted to most

other workers, including the freedoms to join together to demand better job

terms, to strike, and to demand collective bargaining.

2. Improve Enforcement of Current Labor Laws.

—

Government enforce-

ment of existing employment and labor laws should be substantially im-

proved in quantity and quality to protect farmworkers and law-abiding

businesses from the practices of unscrupulous agricultural employers and

their labor contractors. Both federal and state departments of labor should be

given adequate monetary resources to perform their enforcement obligations.

Those resources should be used to address systemic abuses, ensuring ac-

See O

XFAM

MERICA

, I

NVENTORY OF

ARMWORKER

SSUES AND

ROTECTIONS IN

THE

NITED

TATES

ii (Mar. 2011), https://www.oxfamamerica.org/static/oa3/files/inven-

tory-of-farmworker-issues-and-protections-in-the-usa.pdf [https://perma.cc/82AY-LTLK].

See Agricultural Labor Relations Act of 1975, C

. L

. C

ODE

§ 1140 (West 2017).

See C

. L

. C

ODE

§§ 857–864 (West 2017).

2018] The Neighbors Who Feed Us 173

countability and liability of farm operators when using FLCs who engage in

wage theft, labor trafficking, and other abuses.

Anti-retaliation protections must also be strengthened to ensure that

workers who serve as whistleblowers are able to regularize their immigration

status if needed. The fear of immigration enforcement and deportation is a

very strong deterrent for would-be whistleblowers. The practical ability to

remain in the country would allow workers to provide key information, in-

cluding testifying in court if needed. Special attention should also be paid to

eradicating widespread sexual harassment and other discrimination against

women farmworkers and to combatting discrimination against indigenous

workers.

3. Improve Farmworkers’ Access to Legal Services.

—

Federally funded

legal aid programs should be permitted to represent undocumented immi-

grant farmworkers and to bring class actions. This will ensure that there is

actual accountability from employers who violate the law, as federal and state

agencies’ limited resources make it difficult for the government to identify

and sanction all bad actors. To encourage private attorneys to accept

farmworker cases, AWPA should also be amended to enable successful

plaintiffs in litigation to obtain statutory damage awards in higher amounts

and obtain attorneys’ fees and expenses (similar to FLSA and the Equal

Employment Opportunity Act). These reforms are essential stepping stones

to achieving broader structural change because, as discussed above,

farmworkers are often unable to afford legal services.

E. Corporate Social Responsibility

For decades, farmworkers have suffered as each level of the economic

structure in agriculture has sought to evade responsibility for the way

farmworkers are treated. Supermarkets and fast-food chains have said they

cannot control how employees on farms are treated.

Farmers have said they

are “price takers” subject to the economic power of the supermarkets, brands,

and restaurant chains and therefore cannot afford to pay workers more.

Farmworker organizations have long appealed to consumers to apply pres-

sure on supermarket chains and other large buyers of fruits, vegetables, and

milk to exert their influence with farms. Farm labor unions such as United

Farm Workers (UFW) and the Farm Labor Organizing Committee

See Carli Teproff, Farmworkers to Publix: A penny more can change lives, M

IAMI

ER-

ALD

(May 18, 2014) http://www.miamiherald.com/news/local/community/miami-dade/coral-

gables/article1964653.html [https://perma.cc/J8PZ-TS39]; Farmworkers Call for Wendy’s Boy-

cott Over Tomato Buying, F

OOD

OGISTICS

(Mar. 4, 2016), https://www.foodlogistics.com/

sustainability/news/12178019/farmworkers-call-for-wendys-boycott-over-tomato-buying

[https://perma.cc/CMV5-N5TH].

See Z

IPPY

UVALL

, A

MERICAN

ARM

UREAU

TATEMENT TO THE

U.S. S

ENATE

OMMITTEE ON

NVIRONMENT AND

UBLIC

ORKS

5 (Feb. 7, 2018) and Addendum to

attached letter 2, https://www.epw.senate.gov/public/_cache/files/9/a/9ad09eaa-1166-4227-

9cb2-d3b59dd2f422/017DB0E861AD60F63AAB69D2E8B94FC2.duvall-testimony-02.07.

18.pdf [https://perma.cc/9K49-FET6].

174 Harvard Law & Policy Review [Vol. 13

(FLOC) have advanced campaigns for union organizing and collective bar-

gaining through the use of consumer boycotts against grocery chains as well

as farms that had identifiable brands.

In recent years, farmworker organiza-

tions have tapped into consumers’ demand to know more about how their

food is produced. Corporations have begun to respond to this market

pressure.

Many major corporations that sell food to consumers have established

monitoring systems under which the corporation or a third-party examines

conditions on farms

—

inside and outside the United States

—

to determine

compliance with certain standards, especially food safety.

Some corpora-

tions expect their suppliers to operate consistently with internationally-rec-

ognized labor standards, including prohibitions against forced labor;

employment of young children; discrimination based on race, gender, and

other characteristics; and retaliation for exercising freedom of association.

100

Some corporations have adopted requirements regarding compliance with

applicable labor laws and basic occupational safety and health standards with

the goal of preventing occupational injuries, illnesses, and deaths.

101

There have been criticisms of corporations for adopting weak labor

standards and ineffective compliance mechanisms.

102

In an effort to demon-

See S

USAN

ERRISS

& R

ICARDO

ANDOVAL

, T

IGHT IN THE

IELDS

: C

ESAR

HAVEZ AND THE

ARMWORKER

OVEMENT

125–157 (1997); William Serrin, Migrant

Workers Organize a Boycott of Campbell, N.Y. T

IMES

(Jul. 2, 1984); Patrick O’Neill, ‘Enjoy

Some Good Mt. Olive Pickles Tonight’: Boycott ends as company agrees to negotiate with

farmworkers’ union, increase pay, and increase worker protections, I

NDY

EEK

(Sept. 22, 2004);

Manoj Dias-Abey, Justice on Our Fields: Can “Alt-Labor” Organizations Improve Migrant Farm

Workers’ Conditions?, 53 H

ARV

. C.R.-C.L. L. R

. 168, 180–181 (2018).

See generally J

OHN

OWE

, N

OBODIES

: M

ODERN

MERICAN

LAVE

ABOR AND THE

ARK

IDE OF THE

LOBAL

CONOMY

(2007); M

ICHAEL

E. C

ONROY

, B

RANDED

OW THE

‘C

ERTIFICATION

EVOLUTION

’

RANSFORMING

LOBAL

ORPORATIONS

(2007).

See Wal-Mart Stores, Inc., Food Safety Requirements for Food and Beverage Suppliers

(2017) https://cdn.corporate.walmart.com/6d/f3/05fffa84417f8e89f62ab756c998/2017-sup-

plier-food-safety-requirements.pdf [https://perma.cc/QXN2-BN98].

100

Such standards are found in the Declaration on Fundamental Principles and Rights at

Work and its Follow-up issued by the International Labor Organization, which is a unit of the

United Nations. See generally I

’

ABOR

., D

ECLARATION ON

UNDAMENTAL

RIN-

CIPLES AND

IGHTS AT

ORK AND ITS

OLLOW UP

(June 15, 2010), http://www.ilo.org/

wcmsp5/groups/public/

—

-ed_norm/

—

-declaration/documents/publication/wcms_467653.pdf

[https://perma.cc/7E6S-G8FV]. These standards are intended as basic minimum standards

that should be required by governments that belong to the UN and the ILO. See id. at 3.

101

See, e.g., Supply Chain Transparency: Disclosure - California Transparency in Supply

Chains Act of 2010, A

LBERTSON

’

, https://shop.albertsons.com/ecom/content/supply

%20chain%20transparency [https://perma.cc/8745-4XNS].

102

See Jennifer Gordon, The Problem with Corporate Social Responsibility, W

ORKER

RIVEN

OCIAL

ESPONSIBILITY

ETWORK

(Jul. 11, 2017), https://wsr-network.org/re-

source/the-problem-with-corporate-social-responsibility/?sf_paged=9 [https://perma.cc/

DXR6-XJNM]; Brian Finnegan, AFL-CIO, R

ESPONSIBILITY

UTSOURCED

: S

OCIAL

U-

DITS

, W

ORKPLACE

ERTIFICATION AND

WENTY

EARS OF

AILURE TO

ROTECT

ORKER

IGHTS

(2013); Stephanie Clifford & Steven Greenhouse, Fast and Flawed Inspec-

tions of Factories Abroad, N.Y. T

IMES

(Sept. 1, 2013); https://www.nytimes.com/2013/09/02/

business/global/superficial-visits-and-trickery-undermine-foreign-factory-inspections.html

[https://perma.cc/N8FW-6CA6]; Gillian B. White, All Your Clothes Are Made with Exploited

Labor, T

TLANTIC

(June 3, 2015); G

ENEVIEVE

ARON

, P

ENELOPE

YRITSIS ET AL

2018] The Neighbors Who Feed Us 175

strate the legitimacy of their systems and their good faith, some corporations

retain third parties to conduct audits and certify compliance with standards.

There are numerous auditing firms and there are also firms that audit the

auditors and grant accreditation to auditors.

103

Most of these systems have

little or no involvement of workers in the companies that are audited and

therefore are criticized by worker organizations and others for being at best

ineffective and at worst fraudulent.

104

There are several projects based in the United States in which

farmworker organizations are directly involved with growers and other busi-

nesses in the food supply chain to develop and implement codes of conduct

and compliance mechanisms as well as other forms of cooperation to ad-

vance mutual interest. Some examples of these corporate social responsibility

initiatives include: the Agricultural Justice Project (AJP),

105

the Domestic

Fair Trade Association (DFTA),

106

the Equitable Food Initiative (EFI),

107

and the Fair Food Program (FFP).

108

All have established standards regard-

ing farmworkers’ conditions that are intended to be adopted by businesses in

the food supply chain and certification or other mechanisms to ensure com-

pliance with those standards. While they differ in their standards, member-

ship, and approaches, all include in their goals improvements in

farmworkers’ conditions.

109

F. Corporate Social Responsibility Recommendations

1. Enact Policies to Advance Legitimate Corporate Social Responsibility

Programs.

—

Laws requiring disclosure of conduct in supply chains can serve

as a useful tool to advance meaningful corporate social responsibility pro-

grams to improve labor conditions.

110

The California Transparency in Sup-

NIV

HEFFIELD

, C

ONFRONTING

OOT

AUSES

: F

ORCED

ABOR IN

LOBAL

UPPLY

HAINS

59–60, 64–68 (2018).

103

See generally C

ONROY

, supra note 98.

104

See F

INNEGAN

, supra note 102, at 13–16, 25–30; Jill Ebenshade, Corporate Social Re-

sponsibility: Moving from Checklist Monitoring to Contractual Obligation, in A

CHIEVING

ORK-

ERS

’ R

IGHTS IN THE

LOBAL

CONOMY

51, 53–57 (Richard P. Applebaum & Nelson

Lichtenstein eds., 2016), https://wsr-network.org/wp-content/uploads/2018/05/Jill-Esben

shade-EsbenshadeCornellChapter.pdf [https://perma.cc/PZ27-J8EU]; Gordon, supra note

102, at 4–6; Garret Brown, The Corporate Social Responsibility Mirage, I

NDUSTRIAL

AFETY

AND

YGIENE

EWS

(May 1, 2017), https://wsr-network.org/wp-content/uploads/2017/12/

ISHN-CSR-mirage-May-2017-rev.pdf [https://perma.cc/UY5V-XRZW].

105

See A

GRIC

. J

USTICE

ROJECT

, www.agriculturaljusticeproject.org [https://perma.cc/

D8KH-4DQC].

106

See D

OMESTIC

AIR

RADE

’

, www.thedfta.org [https://perma.cc/GAW3-

FZTK].

107

See E

QUITABLE

OOD

NITIATIVE

, www.equitablefood.org [https://perma.cc/X3HY-

GZH3].

108

See F

AIR

OOD

ROGRAM

, www.fairfoodprogram.org [https://perma.cc/V9R7-

ADNS]. Manoj Dias-Abey, supra note 97, at 197–205.

109

We do not provide details about their systems because the purpose of this article is to

highlight potential government policies that could advance these programs. See the programs’

individual websites, supra notes 105–108, for more information.

110

See F

INNEGAN

, supra note 102, at 48–49.

176 Harvard Law & Policy Review [Vol. 13

ply Chains Act of 2010 requires corporations doing business in the state and

grossing more than one hundred million dollars to report annually on the

efforts they are making, if any, to address human trafficking and slavery in

their global supply chains.

111

Although the statute is weak in the sense that

specific actions other than disclosure are not required, the obligation to dis-

close is a strong motivation for companies to take some action. The narrow

focus on trafficking and slavery does not reach other forms of exploitative

and dangerous employment practices, but companies must disclose whether

they are addressing issues related to the use of labor contractors and

recruiters, who are often used by farms as intermediaries to effectuate ex-

ploitative conditions.

More states, and ultimately the federal government, should consider

enacting such disclosure laws and improving on the California statute. Dis-

closure would be more helpful if the law required disclosures regarding ef-

forts to investigate and address additional topics including wage theft, sexual

harassment, and dangerous working conditions. Currently, the California

law does not directly allow for lawsuits when a company provides misleading

or false information about its corporate social responsibility efforts; a cause

of action for such misconduct would strengthen the law’s impact. The law

would also be more helpful to consumers and workers if it applied to more

than the largest corporations.

112

2. Encourage Federal and State Corporate Social Responsibility Incentives.

—

Federal and state incentives for cooperation among farmworkers, agricul-

tural businesses, retailers, restaurant chains, other sellers of agricultural prod-

ucts, and consumers could achieve voluntary changes in the food supply

chain that result in empowerment of farmworkers and improved wages and

working conditions, as well as enhanced productivity. Possible incentives in-

clude government promotion of products that earn labels from systems that

operate with integrity and measurably improve wages and working condi-

tions on farms. Federal and state laws require school districts, the military,

and other public entities that purchase fruits and vegetables to adopt pro-

curement policies that give preference to worker-centric certification sys-

tems.

113

Agencies that enforce wages-and-hours and occupational safety laws

could allocate their limited resources to target audits and investigations on

companies that are not participating in credible corporate social responsibil-

ity projects.

114

111

. C

ODE

§ 1714.43 (2012) (West, Westlaw with urgency legislation through

Ch. 9 of 2018 Reg. Sess.).

112

See F

INNEGAN

, supra note 102, at 48–49.

113

See F

INNEGAN

, supra note 102, at 55; Lars H. Gulbrandsen, Dynamic governance inter-

actions: Evolutionary effects of state responses to non-state certification programs, R

EGULATION

OVERNANCE

8, 74–92 (2014), https://onlinelibrary.wiley.com/doi/epdf/10.1111/rego.12005

[https://perma.cc/2MFP-XYYZ].

114

See D

AVID

EIL

, B

OSTON

NIV

., I

MPROVING

ORKPLACE

ONDITIONS THROUGH

TRATEGIC

NFORCEMENT

: A R

EPORT TO THE

AGE AND

OUR

IVISION

30–38 (May

2010), https://www.dol.gov/whd/resources/strategicEnforcement.pdf [https://perma.cc/

8YZM-96UL].

2018] The Neighbors Who Feed Us 177

G. Occupational Health and Safety Policy

Agricultural exceptionalism is also pervasive when it comes to occupa-

tional health and safety, despite the fact that agricultural work is one of the

most dangerous, physically straining, and potentially hazardous types of

work. Furthermore, there is significant lack of training for workers about

occupational hazards in agricultural work, particularly culturally and linguis-

tically appropriate training.

Agriculture is explicitly exempted from most occupational health and

safety standards.

115

Some of the standards that exempt agriculture include

protections against electrocution

116

and unguarded machinery

117

and require-

ments for ladder safety.

118

Some other serious safety and health hazards

farmworkers face include lack of adequate sanitation; vulnerability to heat

stress; musculoskeletal injuries caused by lengthy stooping, lifting, and cut-

ting in harvesting crops; injuries from farm machinery or equipment; and

exposure to pesticides. The U.S. Occupational Safety and Health Adminis-

tration (OSHA) has not issued adequate standards to address these hazards.

Moreover, even where these standards exist, their effectiveness is limited be-

cause Congress prohibits OSHA from using federal funding to enforce these

standards on smaller farms.

119

OSHA did not issue its Field Sanitation Standard (FSS) until 1987,

120

when it was finally forced to do so by order of a federal court.

121

The FSS

requires that covered employers provide accessible toilets, potable drinking

water, and hand-washing facilities to hand-laborers in the field. However,

although hundreds of workers have died and thousands more have been seri-

ously injured due to excessive heat exposure at work,

122

there is still no fed-

115

See 29 C.F.R. § 1928.21 (2018) (noting agricultural exemption from Occupational

Safety and Health Administration standards beyond those specifically listed).

116

See 29 C.F.R. § 1910.301 et seq. (2018).

117

See 29 C.F.R. § 1910.212 (2018).

118

See 29 C.F.R. § 1910.23 (2018).

119

See O

CCUPATIONAL

AFETY AND

EALTH

DMIN

., U.S. D

’

T OF

ABOR

, CPL 02-

00-051, E

NFORCEMENT

XEMPTIONS AND

IMITATIONS UNDER THE

PPROPRIATIONS

(2017), https://www.osha.gov/pls/oshaweb/owadisp.show_document

?p_table=DIRECTIVES&p_id=1519 [https://perma.cc/GF6N-8XU2].

120

See 29 C.F.R. § 1928.110 (2018).

121

Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 633 (D.C. Cir. 1987).

122

This information is based on an analysis of aggregated data from the Bureau of Labor

Statistics. See Occupational Injuries and Illnesses and Fatal Injuries Profiles,B

UREAU OF

ABOR

TATISTICS

, U.S. D

’

T OF

ABOR

, https://data.bls.gov/gqt/InitialPage [https://perma.cc/

3ZRE-8DCW]. Other research articles discuss the prevalence of heat-related illness in agri-

culture. See Heat-Related Deaths Among Crop Workers

—

United States, 1992-2006, CDC

(2008), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5724a1.htm [https://perma.cc/

QEG8-FXQD]; Larry L. Jackson & Howard R. Rosenberg, Preventing Heat-Related Illness

Among Agricultural Workers, 15 J. A

GROMED

. 3, 200–215 (2010), www.bu.edu/sph/files/2012/

08/Jackson_2010_Preventing_Heat-related_Illness_Among_Agricultural_Workers.pdf

[https://perma.cc/44EF-DZGU]; Nancy L. Fleischer et al., Public Health Impact of Heat-Re-

lated Illness Among Migrant Farmworkers, 44 A

. J.

REVENTIVE

. 3, 199–206, https:/

/www.ncbi.nlm.nih.gov/pubmed/23415115 [https://perma.cc/W5KA-MBQG]; Thomas A.

Arcury et al., Heat Illness Among North Carolina Latino Farmworkers, 57 J. O

CCUP

NVIRON

178 Harvard Law & Policy Review [Vol. 13

eral OSHA standard to protect these workers from the preventable and

tragic health effects of excessive heat exposure. This lack of action at the

federal level is particularly concerning given that the effects of heat exposure

are likely to increase in the coming years as a result of climate change.

123

There is also no OSHA standard relating to musculoskeletal injuries. In

November 2000, following a ten-year battle between business and labor over

rules designed to eliminate workplace musculoskeletal disorders, OSHA is-

sued an ergonomics standard,

124

but it was repealed by Congress a year

later.

125

Although there is an OSHA standard that requires farm machinery

to be equipped with safety guards and shields, such as protective devices for

tractors,

126

the statute specifically exempts most farm equipment manufac-

tured prior to 1976.

127

One of the greatest hazards for the health of both farmworkers and

their families is exposure to pesticides. Farmworkers have one of the highest

rates of chemical exposures among U.S. workers. However, although

OSHA’s rules regarding hazardous workplace chemicals apply to

farmworkers, they exclude the regulation of pesticides. Furthermore, the au-

thority to regulate pesticides and their potential effects on agricultural work-

ers is not under OSHA even though, as noted above, it is the government

agency tasked with ensuring safe working conditions for most workers. In-

stead, this authority is under the U.S. Environmental Protection Agency

(EPA), which also has primary responsibility for approving, restricting, and

banning the use of agricultural pesticides. Unfortunately, the EPA’s stan-

dards and decisions have been more responsive to the demands of pesticide

manufacturers and agribusiness than to the safety and health concerns of

farmworkers and their families.

The EPA recently revised two important worker protection regulations

related to the use of pesticides: the Agricultural Worker Protection Standard

(WPS) (revised in 2015) and the Certification of Pesticide Applicators

(CPA) rule (revised in 2016).

128

The revised rules include measures to ensure

timely and effective access to pesticide application information,

129

a mini-

mum age of 18 for handling all classes of pesticides,

130

protection from drift-

ing pesticides,

131

anti-retaliation protections,

132

enhanced applicator

. 12, 1299–1304 (Dec. 2015), https://www.ncbi.nlm.nih.gov/pubmed/26641825 [https://

perma.cc/ZKL3-2REG].

123

See P

HYSICIANS FOR

OCIAL

ESPONSIBILITY

, C

LIMATE

HANGE AND

EALTH

FFECTS OF

EAT

(2015), http://www.psr.org/environment-and-health/climate-change

/results-impacts/heat-effects-fact-sheet-0514.pdf [https://perma.cc/WX63-UCBW].

124

See Ergonomics Program; Final Rule, 65 Fed. Reg. 68,261 (Nov. 14, 2000) (to be

codified at 29 C.F.R. pt. 1910).

125

See Ergonomics Rule Disapproval, Pub. L. No. 107-5, 115 Stat. 7 (2001).

126

See 29 C.F.R. § 1928.57 (2011).

127

See id. at § 1928.57(a)(3).

128

See 40 C.F.R. § 170 (2015); 40 C.F.R. 171 (2016).

129

See 40 C.F.R. §§ 170.409 and 503 (2015).

130

See id. §§ 170.309(c), 313(c), and 501(c)(3)(xii).

131

See id. § 170.505(a) and (b).

132

See id. § 170.315

2018] The Neighbors Who Feed Us 179

competency standards,

133

and adequate training and supervision of pesticide

applicators.

134

Although the revisions to these rules were the result of a

multi-year, multi-stakeholder process, agribusiness groups have successfully

lobbied the EPA to propose changes that would reverse some of these im-

portant safeguards in the revised rules.

135

As a result, the EPA has an-

nounced that it will begin a new rule-making process in 2018,

136

potentially

undoing some of these important protections.

The EPA is also responsible for conducting health risk assessments as

part of its authority to regulate pesticides and ban a specific pesticide in cases

where there is no safe use. Recent decisions regarding various highly toxic

pesticides, however, have shown that the agency’s procedures do not ade-

quately address the particular risks borne by farmworkers and their families.

For example, the EPA recently ordered that chlorpyrifos, a pesticide linked

to neurodevelopmental disorders in children and acute poisonings of

farmworkers,

137

can continue to be used in agriculture, overruling the clear

recommendation of its own staff without citing any compelling contrary evi-

dence. The EPA failed to consider, among other things, the full extent of

exposure for farmworker communities, including the length of exposure

throughout the workday

138

and the potential for exposure through drift, vola-

tilization, or take-home residue.

139

Another overarching challenge for farmworker occupational health and

safety is widespread underreporting, not just of pesticide-related incidents,

but of other injuries and illnesses. Agricultural workers may be hesitant to

come forward to report incidents because they fear retaliation, including but

not limited to, possible immigration enforcement.

140

Accurate reporting is

also hindered by the unique features of the agricultural workforce described

earlier in the article, including the migratory and seasonal nature of the

workforce, limited English language skills, and economic vulnerability.

141

133

See id. § 170.501(c)(xiii).

134

See id. § 170.401 and 501.

135

See P

ETITION FOR

ULEMAKING

, https://www.epa.gov/sites/production/files/2017-

01/documents/wps_petition_dec._21-508.pdf [https://perma.cc/HP7T-53AW]. See also Paul

Shukovsky, EPA to Consider Reducing Farmworker Pesticide Protections, B

LOOMBERG

EWS

(Dec. 13, 2017), https://www.bna.com/epa-consider-reducing-n73014473148/ [https://

perma.cc/X85Q-P5B5].

136

See Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several

Requirements and Notice About Compliance Dates, 82 Fed. Reg. 60,576 (Dec. 21, 2017) (to

be codified at 40 C.F.R. pt. 170); Pesticides; Certification of Pesticide Applicators Rule; Re-

consideration of the Minimum Age Requirements, 82 Fed. Reg. 60,195 (Dec. 19, 2017) (to be

codified at 40 C.F.R. pt. 171).

137

See James R. Roberts, Catherine J. Karr & Council on Environmental Health, Pesticide

Exposure in Children, 130 P

EDIATRICS

e1765 (2012).

138

ARTHJUSTICE ET AL

., F

ARMWORKER AND

ONSERVATION

OMMENTS ON

HLORPYRIFOS

EVISED

UMAN

EALTH

ISK

SSESSMENT

67–69 (Apr. 30, 2015).

139

See id. at 45–49.

140

See E

LMORE

& C

HISHTI

, supra note 67, at 12.

141

See Letter from Sammy Almashat, Staff Researcher, Pub. Citizen’s Health Research

Group, to David Michaels, Assistant Sec’y of Labor for Occupational Safety and Health 9

(Sept. 1, 2011), https://www.citizen.org/sites/default/files/petition-for-a-heat-standard-

090111.pdf [https://perma.cc/AMP7-PB7R].

180 Harvard Law & Policy Review [Vol. 13

Additionally, workers are sometimes unaware of the particular risks they are

exposed to because they have not been adequately trained on the symptoms

of pesticide poisoning, heat stress, or other health conditions that may be

caused or exacerbated by their working conditions. This hesitancy, combined

with a lack of adequate training for workers, allows dangerous conditions to

remain unaddressed and proliferate, ultimately resulting in a higher inci-

dence of injuries and deaths.

H. Occupational Health and Safety Recommendations

1. Strengthen OSHA Safety Standards for Agricultural Workers.

—

OSHA

should end its policy of excluding agricultural employers and their workers

from occupational safety standards for general industry and should provide

farmworkers with safeguards that are at least equivalent to those provided in

other occupations. Additionally, OSHA’s Field Sanitation Standard should

be strengthened to address prevention of heat-related illness.

142

Congress

must also stop inserting an annual appropriations rider that prohibits en-

forcement of OSHA standards on small farms.

2. Improve Pesticide Safety.

—

The revised Agricultural Worker Protec-

tion Standard (WPS) and Certification of Pesticide Applicators (CPA) rule

should be fully implemented and current efforts underway to roll back or

weaken these rules should be rejected. EPA should demand better informa-

tion about farmworkers’ pesticide exposures and implement stronger protec-

tions for workers and their families. The implementation and enforcement

of worker safety standards for pesticides in agriculture should be shifted from

state departments of agriculture to state health, labor, or environmental

agencies. The methods for evaluating the safety of agricultural pesticides to

which farmworkers are exposed should be strengthened. Additionally, pesti-

cide use and illness incident reporting should be required on a national level.

California is one of the few states that require pesticide applicators and

growers to report pesticide use and health-care providers to report suspected

pesticide poisoning incidents.

143

Such information is necessary for making

important decisions regarding medical treatment, public health, and pesti-

cide regulation.

I. Health-Care Policy

Farmworkers are often overlooked in the design, development, and im-

plementation of federal health policy. Federal funding, including grants and

contracts, is rarely earmarked specifically for farmworkers. Few federal re-

search initiatives account for the unique needs and realities of farmworker

142

See id. at 14–15.

143

For more details on this program and its impact, see C

. D

’

T OF

ESTICIDE

EG-

ULATION

, A G

UIDE TO

ESTICIDE

EGULATION IN

ALIFORNIA

– C

HAPTER

8: P

ROTECT-

ING

ORKERS AND THE

UBLIC

64 (2017), http://www.cdpr.ca.gov/docs/pressrls/dprguide/

chapter8.pdf [https://perma.cc/93BN-XSJD].

2018] The Neighbors Who Feed Us 181

communities. As a result, there are limited opportunities for research, creat-

ing a catch-22 for farmworkers and their advocates. In the absence of timely

and relevant data on farmworker health, risks, and needs, government offi-

cials who wish to make evidence-based decisions often decline to improve

policies or programs.

In 1962, Congress passed the Migrant Health Act, creating a system of

federally-funded clinics to serve farmworkers and their families.

144

Today,

there are 174 community health centers that receive funding from the federal

government to provide health care to farmworkers and their families (more

commonly referred to as migrant health centers).

145

Yet farmworkers are less

likely to access health care than the general population. Thirty-eight percent

of workers reported not using any U.S. health services in the last two years,

146

compared with 8.9% of the general population.

147

Fewer than 25% of

farmworkers and their families went to a health center in 2016.

148

While the reasons for the low utilization are numerous, the most signif-

icant barrier is cost. Only 35% of farmworkers have health insurance.

149

Un-

insured or underinsured workers and their families can receive care at a

health center at a discounted cost. The centers’ sliding fee scale adjusts the

cost of the health-care visit based on a patient’s family size and income.

150

Access to dental care and specialty care, such as dermatology, physical ther-

apy, and endocrinology, is limited in rural communities and health centers

often do not have the capacity or resources to offer specialized health services

144

The Community Health Center Program was authorized under the Public Health Ser-

vice Act. See Bipartisan Budget Act of 2018, Pub. L. 115-123, 132 Stat. 282, 287 (to be

codified at 42 U.S.C. § 254b-2). In 1996, the Health Centers Consolidation Act consolidated

migrant health centers, along with health centers that serve homeless populations and public

housing residents, under Section 330 of the Public Health Service Act. See Health Centers

Consolidation Act of 1996, Pub. L. 104-299, 110 Stat. 3626 (Oct. 11, 1996). Health centers

that serve migratory and seasonal agricultural workers, commonly referred to as migrant health

centers, are designated under section 330(g) of the Public Health Service Act.

145

See 2016 National Health Center Data, B

UREAU OF

RIMARY

EALTH

ARE

, U.S.

’

T OF

EALTH AND

UMAN

ERVS

. (2016) [hereinafter 2016 N

ATIONAL

EALTH

ENTER

ATA

], https://bphc.hrsa.gov/uds/datacenter.aspx?fd=MH [https://perma.cc/

Q6ZK-E235].

146

See DOL NAWS 2013-2014, supra note 18, at 73.

147

See N

’

FOR

EALTH

TATISTICS

, C

TRS

FOR

ISEASE

ONTROL AND

RE-

VENTION

, A

MBULATORY

ARE

SE AND

HYSICIAN

FFICE

ISITS

1 (May 3, 2017), http://

www.cdc.gov/nchs/fastats/physician-visits.htm [https://perma.cc/3ZG2-5KP7].

148

In 2016, health centers served 957,529 agricultural workers and their families. See 2016

ATIONAL

EALTH

ENTER

ATA

, supra note 145.

149

See DOL NAWS 2013-2014, supra note 18, at 72.

150

Community Health Centers are required to have a sliding fee discount schedule for

patients who are uninsured or underinsured. The amount the patient pays for health center

services is based on her or his income and family size. Health centers determine their sliding

fee schedule based on locally prevailing rates, among other considerations. The discounts are

only available to patients up to 200% of the Federal Poverty Level. See Chapter 9: Sliding Fee

Discount Program, H

EALTH

AND

ERVS

. A

DMIN

., H

EALTH

ENTER

OMPLIANCE

ANUAL

(Jan. 2018), https://bphc.hrsa.gov/programrequirements/compliancemanual/chap-

ter-9.html#titletop [https://perma.cc/V64U-AKJ7].

182 Harvard Law & Policy Review [Vol. 13

beyond preventative care.

151

Even with health insurance, specialized care can

be expensive and hard to access.

152

Workers who have health insurance reported that they utilized health-

care services more frequently.

153

The main sources of health insurance for

farmworkers are employer-provided health insurance, Medicaid/CHIP (the

Children’s Health Insurance Program), and the Affordable Care Act (ACA)

marketplaces.

154

Thirty-seven percent of farmworkers are enrolled in Medi-

caid.

155

Under the Personal Responsibility and Work Opportunity Act

(PRWORA) of 1996, eligibility for federal benefit programs, including but

not limited to Medicaid and the Supplemental Nutrition Assistance Pro-

gram (SNAP, also commonly referred to as food stamps), was restricted to

individuals who are U.S. citizens or “qualified aliens.”

156

Therefore, while the

majority of farmworkers do not qualify for Medicaid or SNAP, the majority

of their children, who are U.S. citizens, do qualify for these programs. Ac-

cording to the NAWS, while only 37% of workers have health insurance

through the government, 82% of their children have government-provided

coverage.

157

Furthermore, some states use their own funds to expand Medi-

caid eligibility to immigrants who do not meet the “qualified alien” defini-

tion but are lawfully present.

158

These states include New York and

California,

159

which also have large farmworker populations.

151

See Kate Samuels et al., Transforming Rural Health Care: High-Quality, Sustainable Ac-

cess to Specialty Care, B

ROOKINGS

NSTITUTE

: H

EALTH

FFAIRS BLOG

(Dec. 5, 2014), https:/

/www.brookings.edu/opinions/transforming-rural-health-care-high-quality-sustainable-ac-

cess-to-specialty-care/ [https://perma.cc/7C28-NZR6].

152

Health insurance deductibles and co-pays, especially for out-of-network services, can

result in high out-of-pocket costs for specialty care services. See Mabel C. Ezeonwu, Specialty-

care Access for Community Health Clinic Patients: Processes and Barriers, 11 J. M

ULTIDISCIPLI-

NARY

EALTHCARE

109, 112–113 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC

5826087/pdf/jmdh-11-109.pdf [https://perma.cc/ZH82-8X2W].

153

See DOL NAWS 2013-2014, supra note 18, at 43.

154

See id. at 42. Note that NAWS data does not distinguish between Medicaid/CHIP and

ACA marketplaces. The NAWS data was collected at the beginning of ACA implementation.

NAWS data was collected from 2013 to 2014. Full ACA implementation, including the mar-

ketplaces, began in January 2014.

155

See id.

156

See 8 U.S.C. §§ 1641(b), 1642(a)(1) (2012).

157

See DOL NAWS 2013-2014, supra note 18, at 42–43.

158

Under Section 214 of the Children’s Health Insurance Program Reauthorization Act

(CHIPRA), states have the option to provide Medicaid and CHIP coverage to “lawfully resid-

ing” children and pregnant women. See Children’s Health Insurance Program Reauthorization

Act of 2009, Pub. L. No. 111-3, 123 Stat. 56 § 214 (2009) (codified as amended at 42 U.S.C.

§ 1396b(v) (2012)). Some states have gone beyond CHIPRA, using state funds to expand

Medicaid eligibility to additional groups of immigrants. For example, California’s Medicaid

program (Medi-Cal) is open to all lawfully residing adults up to 138% of the Federal Poverty

Level, pregnant women up to 322% of the Federal Poverty Level, and children up to 266% of

the Federal Poverty Level. See T

ENRY

J. K

AISER

AMILY

OUND

., M

EDICAID IN

ALI-

FORNIA

(June 2017), http://files.kff.org/attachment/fact-sheet-medicaid-state-CA [https://

perma.cc/E8T8-CQVJ].

159

In May 2016, California further expanded Medi-Cal eligibility to undocumented chil-

dren (SB 75). See SB 75 - Full Scope Medi-Cal for All Children, C

. D

EPT

. H

EALTH

ARE

ERVICES

(Aug. 31, 2017), http://www.dhcs.ca.gov/services/medi-cal/eligibility/Pages/sb-

75.aspx [https://perma.cc/AG3U-ABRQ]. According to data from the UC Berkeley Labor

2018] The Neighbors Who Feed Us 183

Under the ACA, more workers and their families have gained access to

health insurance because anyone who is lawfully present in the United

States, with the exception of Deferred Action for Childhood Arrivals

(DACA) program recipients, is eligible to purchase health insurance in the

ACA’s marketplace.

160

If their household income is below 400% of the fed-

eral poverty level, they qualify for financial assistance to lower the cost of

health insurance.

161

Some farmworkers and their families who were previ-

ously ineligible for Medicaid or health insurance from their employer are

able to enroll in affordable and comprehensive health insurance through the

ACA marketplaces. H-2A workers are among those who are eligible to en-

roll in health insurance and to receive financial assistance.

162

Although there is little research providing quantitative data, anecdot-

ally, the ACA has increased farmworker health insurance enrollment, espe-

cially among H-2A workers. In North Carolina, for example, more than two

thousand H-2A workers have enrolled in health insurance.

163

Unfortunately,

despite any progress made, there are still numerous barriers to enrollment in

farmworker communities. One of the biggest barriers to enrollment is insuf-

ficient availability of in-person assistance. Farmworkers especially rely on in-

person assistance to enroll in health insurance.

164

In-person assisters not only

help enroll workers, they also provide education about the U.S. health-care

system prior to enrollment and help enrolled workers connect to health-care

services, pay their premiums, and understand notices from their health insur-

ance plan and the marketplace post-enrollment. Many of these in-person

assisters are from health centers or community organizations that received

funding from the Centers for Medicare and Medicaid Services (CMS) to

Center, the San Joaquin Valley and other rural areas of California experienced some of the

greatest gains in Medi-Cal coverage. See UC B

ERKELEY

FOR

. R

ESEARCH AND

DUC

., D

ATA

RIEF

7 (Mar. 2017), http://laborcenter.berkeley.edu/pdf/2017/Medi-Cal-Ex-

pansion-under-AHCA.pdf [https://perma.cc/35V7-8SMX].

160

See Immigration status and the Marketplace

EALTHCARE

GOV

, https://

www.healthcare.gov/immigrants/immigration-status/ [https://perma.cc/F8F3-7D33]; Cover-

age for lawfully present immigrants, H

EALTHCARE

GOV

, https://www.healthcare.gov/immi-

grants/lawfully-present-immigrants/ [https://perma.cc/F5DL-4BLV].

161

See Amendment of 1986 Code, Pub. L. No. 115-97, Title I, § 11002(d)(1)(E), 131

Stat. 2060 (2017) (to be codified at 26 U.S.C. § 36B(a)(3)(A)(i)).

162

Individuals on non-immigrant visas (including H-2A workers) are among those con-

sidered lawfully present under the ACA. See Immigration status and the Marketplace, supra note

160. They are eligible to enroll in health insurance in the ACA marketplaces and are eligible

for subsidies to reduce the cost of health insurance. See F

ARMWORKER

USTICE

, T

F-

FORDABLE

ARE

CT AND

H-2A A

GRICULTURAL

ORKERS

: F

REQUENTLY

SKED

UES-

TIONS

2 (2015), https://www.farmworkerjustice.org/sites/default/files/Brief_ACA_H2A_

FINAL%202015.pdf [https://perma.cc/7QQG-9HTD].

163

Interview with A. Pollard, North Carolina Community Health Center Association, via

phone in June 2016. Farmworker Justice works with the North Carolina Community Health

Center Association to provide training and technical assistance to health center staff on H-2A

workers and ACA outreach and enrollment.

164

Between May and October 2015, FJ conducted focus groups with farmworkers and

community health workers (promotores de salud) to learn about their health-care needs and

barriers to health-care and health-insurance access. The focus groups were held in New York,

Maryland, Michigan, California, and Arizona. In total, FJ staff met with forty agricultural

workers and sixty promotores de salud.

184 Harvard Law & Policy Review [Vol. 13

provide enrollment assistance. Recent cuts to these outreach and enrollment

programs

165

further reduce access to in-person assistance in farmworker com-

munities, where funding for these programs was already insufficient.

J. Health-Care Policy Recommendations

1. Prioritize Farmworkers in National Research and Funding Initiatives.

—

The U.S. Department of Health and Human Services (HHS), which

oversees the health center program as well as the National Institutes of

Health, should expand its capacity and capability to focus on and address

health issues specific to farmworkers and their families. It is important to

prioritize farmworkers when drafting and evaluating funding for research,

especially in rural communities. Farmworker advocates and community-

based organizations should be involved throughout the process, creating op-

portunities with and for farmworker communities. Further, there must be

active and meaningful participation of farmworkers and the organizations

that represent and serve them on national boards and advisory groups that

influence health policy.

166

Their active participation would ensure effective

planning and delivery of health promotion, preventive, and treatment ser-

vices that reflect the needs of farmworker communities.

2. Remove Immigrant Eligibility Restrictions for Federal Health and Nu-

trition Programs.

—

Congress should remove certain eligibility restrictions

for federal health and nutrition programs, specifically SNAP and Medicaid,

under PRWORA. While 53% of farmworkers have legal status in the

United States,

167

only 31% are U.S. citizens.

168

A large number of

farmworkers, therefore, are not eligible for these federal programs due to

their immigration status, despite their lawful status. All lawfully present in-

dividuals should be able to access SNAP and health insurance to support

their health and well-being. At the very least, all states should elect to ex-

pand Medicaid and CHIP eligibility to lawfully-residing children and preg-

nant women. Currently, twenty states offer coverage to lawfully-residing

pregnant women under the Children’s Health Insurance Program

165

In August 2017, the Centers for Medicare and Medicaid Services (CMS) announced

that it would cut funding to assister programs as well as advertising to promote open enroll-

ment in the marketplaces. Funding for advertising was cut by 90% from $100 million to $10

million and funding for assister programs was cut by 42% from about $62 million to about $36

million. See CMS Announcement on ACA Navigator Program and Promotion for Upcoming En-

rollment, C

ENTERS FOR

EDICARE

& M

EDICAID

ERVICES

(Aug. 31, 2017), https://

www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/2017-Press-releases-items/

2017-08-31-3.html [https://perma.cc/L36F-8MH6].

166

Examples of national boards and advisory groups include the HHS’ Advisory Commit-

tee on Minority Health and the National Advisory Committee on Rural Health and Human

Services. See generally Dep’t of Health and Human Services, National Advisory Committee on

Rural Health & Human Services, H

EALTH

ESOURCES AND

ERVICE

DMINISTRATION

(Nov. 2017), https://www.hrsa.gov/advisory-committees/rural-health/index.html [https://

perma.cc/9BWD-2A59].

167

See DOL NAWS 2013-2014, supra note 18, at i.

168

See id.

2018] The Neighbors Who Feed Us 185

Reauthorization Act of 2009 (CHIPRA).

169

We acknowledge that there is

likely to be resistance to these ideas, especially given the current political

climate as it relates to health care and immigration. However, research

shows that there are economic benefits to expanded health insurance cover-

age. These benefits include improved education and employment outcomes

for the individual; health-care systems also benefit because high rates of un-

insured put considerable financial strain on hospitals and health centers, ad-

versely impacting community access to health care.

170

Federal agencies must also ensure that they maintain the privacy and

protection of information of applicants to federal programs such as SNAP,

Medicaid, and the ACA marketplace. Information provided by applicants

must not be shared with immigration enforcement agencies. This is espe-

cially important for farmworkers who are in mixed-immigration status fami-

lies, where one (or more) family member is undocumented. These families

may be reluctant to enroll eligible family members in these programs if there

are not assurances that their information will be protected. Educational re-

sources for these programs must explicitly state that information is not

shared with immigration authorities. This message should be reinforced by

enrollment assisters and organization outreach staff during informational

sessions with farmworker and immigrant communities.

3. Adequately Fund Health Programs in Farmworker Communities.

—

Community and migrant health centers need guaranteed and sufficient

funding to properly serve the health needs of farmworker communities. In-

vestments should be made in outreach and enabling services, including

transportation and interpretation. Furthermore, resources should be priori-

tized to support the development and integration of health information

technology in health centers. States should expand telemedicine opportuni-

ties in health centers and rural health clinics to facilitate access to specialty

care providers. Finally, funding for in-person assistance programs should be

restored and prioritized to support health insurance access in farmworker

and other vulnerable, hard-to-reach communities. Without sufficient fund-

ing, many programs have been forced to cut their outreach and enrollment

services, disproportionately affecting rural communities where there are

fewer resources.

ONCLUSION

Farmworkers and their families are valuable members of our rural com-

munities. Yet farmworkers are often excluded from and overlooked by our

federal policies and programs. As a result, farmworker communities are

169

See The Children’s Health Insurance Program, G

EORGETOWN

NIV

. H

EALTH

OLICY

NST

. C

FOR

HILDREN AND

AMILIES

(Feb. 6, 2017), https://ccf.georgetown.edu/2017/

02/06/about-chip/ [https://perma.cc/E4MK-4BTJ].

170

See S

HANNON

ONVILLE ET AL

., P

. P

. I

NST

. C

., H

EALTH

OVERAGE

AND

ARE FOR

NDOCUMENTED

MMIGRANTS

1 (Nov. 2015), http://www.ppic.org/con-

tent/pubs/report/R_1115SMR.pdf [https://perma.cc/Z69Z-E9VR].

186 Harvard Law & Policy Review [Vol. 13

among the most vulnerable, disadvantaged, and underserved in the United

States. While discussed separately in this article, immigration, labor, occupa-

tional health and safety, and health-care policy are intertwined when it

comes to the daily lives of farmworker families. Underlying all of these issues

are immigration status and our broken immigration system. Meaningful im-

migration reform with a path to citizenship would help empower

farmworkers to advocate for improved policies in their workplaces and in

government while ensuring a stable workforce. Ending the fear of arrest and

deportation for law-abiding undocumented farmworkers would enable fami-

lies to access health care, attend school functions, and in other ways partici-

pate in the communities that they enrich. Our recommended improvements

would be steps toward true and sustainable revitalization of these communi-

ties, as well as an acknowledgement of the crucial role that farmworkers play

for the present and future of rural America.