California Farmworkers: What to Do if Your Employer Retaliates Against You

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Twenty-one immigrant farmworkers will collectively receive $328,077 from their former employer, Mauritson Farms, a Sonoma County vineyard company, after the grower reached a settlement with state labor regulators earlier this summer. Officials with the California Agricultural Labor Relations Board (ALRB) announced in July that their investigation determined Mauritson Farms retaliated against the workers — who were in the U.S. on H-2A visas — after they spoke up about unsafe conditions in the fields.

Such incidents of employer retaliation against workers who speak up are unfortunately not rare. In the agriculture industry, many workers get punished by their boss — or the person that connected them to employment — after they request a better or safer workplace.

Jump straight to specific advice:

• What’s considered ‘unsafe working conditions’ for farmworkers?
• What is retaliation by an employer?
• Do these protections still apply for undocumented employees?
• Which agencies enforce labor rules in California?
• I believe my employer retaliated against me for speaking up about conditions at work. What should I do?
• I am nervous about my immigration situation if I report what happened at work. What are my options?

In California, it is illegal for an employer to retaliate against their employee, regardless of their immigration or documentation status. But that still doesn’t prevent some growers from punishing workers that speak up.

That’s why we have created this guide to inform farmworkers about their rights and protections. When you work in the fields, even if you are in the United States without documentation, your employer needs to respect your rights — and this is how they can be held accountable if they don’t.

What’s considered unsafe working conditions for farmworkers?

California has a complex set of rules for what a safe working environment is in the agriculture industry (PDF), which cover things like worker safety during wildfires, handling farm machinery, and even in the case of dairies and grain facilities, how to prevent accidents in confined spaces.

Regardless of how hot it is, employers must always provide farmworkers with enough drinking water near their stations. Each employee should have access to at least one quart of water every hour. And even if folks bring their own water bottles, employers must still have enough water available on site.

When temperatures rise above 80 degrees, employers must also provide an area with enough shade to accommodate every worker on-site. On days hotter than 95 degrees, supervisors must check in with laborers consistently throughout the day and ensure workers take breaks that are at least 10 minutes long every 2 hours to prevent overheating. Just “offering” these breaks is not sufficient.

These heat-safety rules apply to workers in all industries, not just the agricultural sector.

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What is retaliation by an employer?

In California, retaliation means when an employer fires, punishes or cuts the wages or hours of a worker because that individual sought to improve their working conditions. This includes cases of growers refusing to rehire seasonal workers for the next harvest after they have spoken up.

Asking your boss to improve working conditions doesn’t have to be something big like organizing a strike or a march. It can also include:

• Asking for more water and shade to be provided on very hot days.
• Asking for equipment necessary to keep you safe when working in the fields.
• Pointing out that some of your wages are missing.

If there is a law concerning your safety, your labor rights or your wages that your employer is not following, you should be able to talk about it with your boss freely and safely.

Do these protections still apply for undocumented employees?

Yes. California’s safety rules benefit all workers, regardless of their immigration status. Your employer cannot use your immigration status as a reason to exclude you from safety protections.

Additionally, undocumented workers can still seek help from state agencies that enforce labor protections — that is, being undocumented doesn’t disqualify them from seeking (and getting) this help from the state.

“Immigration status, if that’s an issue, is not anything that our office asks folks about,” confirmed Jessica Arciniega, regional director of the ALRB, which investigates possible workplace abuses in the agricultural industry.

Do these protections still apply for those working without a formal contract?

If you’re working for an individual or a business without a formal job contract, labor rights experts say that these protections still apply to you — as long as it can be proven that you, as a worker, have provided labor in exchange for payment.

In some cases, that proof could include written communication between a worker and an employer — like an email, or a text message — that confirms that an exchange of services for payment took place.

Which agencies enforce labor rules in California?

There are three state agencies that investigate labor violations and have the authority to penalize bad employers. All three agencies can investigate cases in the agricultural industry.

The Agricultural Labor Relations Board

The ALRB was created in 1975 after then-Gov. Jerry Brown signed the California Agricultural Labor Relations Act in 1975. This legislation also defines what an unfair labor practice is: actions taken by an employer that violate the rights of farmworkers, which includes retaliation — firing or cutting the wages of employees who ask for better working conditions. Jump straight to what you can do if you believe your employer has retaliated against you.

“I would encourage anybody that’s considering whether or not their rights were violated to call our office,” said the ALRB’s Arciniega. “Not only is our staff bilingual, but they’re culturally competent. Many of them, their families or past generations have worked in agriculture or are farmworkers.”

You can contact the ALRB directly by calling 1-800-449-3699 or reach out to its regional offices located in Santa Rosa, Salinas, Visalia, Oxnard and Indio. Bay Area workers should contact the Santa Rosa office.

An ALRB official can talk to you more about workplace safety rules and your rights as a worker specific to your situation. Additionally, they can explain how you can file an unfair labor practice charge against your employer which could set off a formal investigation of your employer by the ALRB.

California Division of Occupational Safety and Health

Cal/OSHA creates and enforces the state’s rules on workplace safety, making sure that employees are not exposed to dangerous chemicals or placed in risky situations.

If your boss is making you or your colleagues do something you are not sure is safe, you can check in with the agency by calling (833) 579-0927.

The Labor Commissioner’s Office

The Labor Commissioner’s Office — which is also known as the Division of Labor Standards Enforcement (DLSE) — is the part of California’s Department of Industrial Relations that looks into wage theft and retaliation by employers against workers.

If you think your boss is not paying you correctly for the hours you work or refuses to pay you for overtime, this is the agency you should contact.

I believe my employer retaliated against me for speaking up about conditions at work. What should I do?

Pause while you document everything.

If you just lost your job or wages, and you think it’s because of retaliation, first take some time to process the situation, and collect your thoughts.

“I’d recommend folks to write down everything they remember that led up to this, because with the strong feelings you have at the moment, it is easy to forget important details,” said Ana Salgado, former farmworker and board member of North Bay Jobs With Justice (NBJWJ), a labor rights group that assisted the former employees of Mauritson Farms in their case with the ALRB.

“Believe in yourself and in what you know happened to you,” she added.

Collect past evidence

As you’re jotting down your experiences, also look for written messages between you and your employer where you describe conditions at work and your supervisor’s response. This could be letters, emails or even screenshots of a text message conversation.

Other important pieces of information to look for are your pay stubs that show a cut in wages or hours after you spoke, or photos of conditions in the fields, your workstation or housing, if it’s employer-provided.

Seek help from the professionals

Salgado also recommends looking for the help of a labor rights organization in your area. Advocates can help you create a timeline of what happened, help you contact your employer if you want to try resolving the situation directly, or even prepare you for talking to state officials if you choose to take that step.

Based on their resources, like staff numbers, some groups can provide more help than others. So if you think you may need extra guidance and support, consider reaching out to more than one organization.

Here are some organizations in the Bay Area that can connect farmworkers with help:

• California Rural Legal Assistance: (800) 337-0690
• Legal Aid at Work: (415) 864-8208
• North Bay Organizing Project: (707) 843-7858
• Asian Americans Advancing Justice/Asian Law Caucus: (415) 896-1701
• Centro Legal de la Raza (Oakland): (510) 437-1554
• La Raza Centro Legal (San Francisco): (415) 575-3500

I want to file a claim so officials can investigate my situation. What’s next?

If you are ready to report what happened, the ALRB will be the agency you contact. You will need a Charge Against Employer form (PDF), which you need to print out, complete and either email or mail to your nearest ALRB field office.

For Bay Area residents, that’s the Santa Rosa office:

• Phone: (707) 527-3256
• Email: Contact regional director Jessica Arciniega at Jessica.Arciniega@alrb.ca.gov
• Mail: 606 Healdsburg Avenue Santa Rosa, CA 95401

If you need to complete the form in another language that is not English, reach out to your nearest field office directly.

Keep in mind that the ALRB requires at least two workers to come together to file a charge. If you are nervous about this step, a workers’ rights group can file a charge on your behalf — which is what happened in the Mauritson Farms case.

Why you should file a charge as soon as possible (even if you’re anxious)

Labor advocates recommend employees report what happened to them as soon as they can. This gives state officials more time to talk to laborers and investigate what happened in the fields.

Timing becomes even more important when farmworkers are in the country on a temporary work permit, like the H-2A visa.

It is completely understandable if you are feeling very nervous about filing a report — especially if you are afraid your employer or the person that got you the job is threatening you with further retaliation. But keep in mind that there is a time limit to report an incident with the state. You only have six months from the moment you experienced retaliation (when your hours were cut, or you were fired or knew you would not be rehired) to file a charge with the ALRB.

After the six-month mark, officials cannot launch an investigation.

What if your boss — or the individual that connected you with employment, like a job recruiter — continues to threaten you with further retaliation if you talk to the state?

In this case, it could be a good idea to seek help from a labor rights group to protect yourself. See a list of labor rights groups you can contact.

Once I file a charge with the ALRB, what happens?

The agency assesses your case.

Officials will first decide if your situation meets the requirements to begin an investigation.

Some examples of when the ALRB wouldn’t be able to take your case: if you were fired — two years ago — and you think your boss did that to retaliate against you, that exceeds the ALRB’s six-month time limit and the agency cannot launch an investigation. Or if the incident took place in a farm in another state, that is also out of the ALRB’s jurisdiction.

An investigation begins, and your employer is notified.

If the agency is able to take the case, ALRB officials will confirm that with you. They will then notify your employer about the charge, and that an investigation will begin, says ALRB General Counsel Julia Montgomery.

“A team of lawyers and investigators will take on the investigation, which can include the workers involved in the investigation, other employees, supervisors and anyone else that could have relevant information,” said Montgomery. Investigators can also request documents and other written records from both employers and workers, she said.

This step can take months, or even years. If you are no longer in the U.S. during the investigation because of your immigration situation, the ALRB will still look to contact you. In past cases, agency officials have sought out farmworkers even when they have traveled back to remote rural communities in their countries of origin.

A decision is made about the charge.

After the investigation, officials will determine if there is enough evidence to confirm if retaliation or another unfair labor practice took place. If there is not enough evidence, the charge is dismissed.

If the evidence is sufficient, however, the ALRB regional director will present a formal complaint against the employer.

But, hold on, that doesn’t mean you have won your case yet.

How the ALRB brings a case against an employer

A date for a hearing will be set and an administrative judge will decide whether the employer did in fact break the law.

Both sides will have an opportunity to defend their case: your employer and their legal representatives, and the ALRB which will argue that you experienced retaliation.

If the judge decides in favor of the ALRB and the employees involved, workers can receive compensation to make up for lost wages and potentially even be re-employed if they lost their jobs. ALRB officials will travel to the farm and inform other employees of the case. Additionally, employers could face heavy fines.

At any step of the process, the ALRB can strike a settlement agreement with the employer. A settlement can also include compensation for the affected workers or even employment offers.

I am nervous about my immigration situation if I report what happened at work. What are my options?

On July 19, Gov. Gavin Newsom announced a $4.5 million pilot program to provide free immigration legal services to farmworkers who are involved in state labor investigations. This would include case-review services, legal advice and representation by an attorney to laborers in California who have a pending case with either the ALRB, the Labor Commissioner’s Office or Cal/OSHA.

The goal of this program, officials say, is to address one of the fears that prevents employees from speaking up — the fear of losing their visa or not being rehired — by connecting them to immigration experts who could help them find ways to stay in this country. And earlier this year, the Biden administration unveiled a new, streamlined “deferred action” initiative that allows workers to apply for a work permit and two years of protection from deportation, if they are cooperating with a labor rights investigation.

To learn more about the pilot program and whether your case could qualify for free legal services from the state, talk to your ALRB field office.

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