US Department of Labor Hails Expanded Protections for H-2A Farmworkers in Santa Rosa

Federal labor officials announced Friday increased protections for the growing number of seasonal foreign workers whom agricultural employers rely upon as they navigate domestic labor shortages.

The final rule aims to reduce abuses faced by temporary agricultural laborers with H-2A visas, including human trafficking and wage theft, according to the U.S. Department of Labor.

The regulations will help ensure the program treats workers fairly while promoting employer accountability, Acting Labor Secretary Julie Su said during a press conference in Santa Rosa.

“We have seen far too often the rights of those workers are violated,” said Su, who previously served as California Labor Secretary. The new rule “both strengthens existing protections and expands some protections. We are also improving the DOL’s ability to enforce the laws that are in place against fraud and bad actors who violated workers’ rights previously.”

The H-2A program allows U.S. agricultural employers to fill temporary jobs with workers from other countries when they can’t find enough workers in the U.S. The program has quadrupled in size since 2000, with nearly 380,000 H-2A positions certified nationwide last year.

The farmworkers, many who are from Mexico, depend on employers for their housing and transportation and can be deported if they are fired. That power imbalance often contributes to exploitative job conditions, according to experts who’ve studied the program.

H-2A workers “are afraid of retaliation from their employers. They do not raise their voice when working under abusive conditions,” said Maria Casillas, a member of the United Farm Workers Foundation who pushed for the protections. “All farmworkers, including H-2A and American workers, deserve the right to have a voice in the workplace.”

The labor department’s wage and hour division found violations in 88% of the H-2A investigations it opened in the last five years. However, most farm employers are never inspected by the agency because it lacks funding and staffing, according to a recent study from the Economic Policy Institute.

Su said the new regulations, which include clarifying that an employer can only terminate a worker when they fail to comply with outlined job duties or employer policies, are a “significant milestone” in the Biden administration’s pro-worker efforts.

California employers requested almost 41,000 H-2A workers last year, making the state the second top user of these visas behind Florida.

Agriculture employers in California have argued the regulations would make an already burdensome program more complex and costly as they seek to bridge the gap of growing labor shortages.

The California Farm Bureau Federation, which has nearly 29,000 members, encouraged the labor department to drop provisions such as those granting labor groups access to workers at employer-provided housing out of privacy concerns and adding requirements to justify firing a worker.

Matthew Viohl, federal policy director for the California Farm Bureau, told KQED that while the organization was still processing the 600-page rule, their initial review “is one of disappointment and concern.”

“With the overwhelming majority of H-2A employers acting in good faith, we would ask the Acting Secretary to withdraw this rule and work more closely with industry partners to better improve our guest worker programs in a more sustainable and practical manner,” Viohl said in a statement.

“Despite the Department of Labor routinely referencing many of the concerns raised by the agricultural industry, it appears most of those suggestions were ignored in favor of regulatory overreach to the benefit of organized labor groups,” Viohl added.

Under the regulations, employers are prohibited from holding or confiscating a worker’s passport, visa or other identification documents, which is a tactic used to exploit workers, according to the labor department.

To make the recruitment process more transparent, U.S. employers must also disclose their agreements with agents in Mexico, Central America and elsewhere who solicit prospective H-2A workers. KQED previously reported that agents blacklist employees who speak up while employed in the U.S.

Most workers pay illegal recruitment fees that put them in debt even before they start working in the U.S., said attorney Daniel Costa, a former senior advisor to the California attorney general on immigration and labor.

Costa expects legal challenges to the new rule, but he said the Department of Labor has the authority to make these “modest and reasonable” changes to the H-2A program’s standards.

“The law requires that the U.S. government protect labor standards in the H-2A program, so they have a lot of authority to set that program up,” said Costa, director of immigration law and policy research at the Economic Policy Institute. “And I think it’s good to use that authority to have updated protections that reflect the reality for H-2A workers.”

The rule is set to be effective on June 28. H-2A applications filed before August 28 will be processed according to the previous standards.

Farmworker advocates who attended the press conference in Santa Rosa welcomed the changes, including those that allow workers to decline going to employer-sponsored meetings where they are discouraged from organizing.

“They peddle fear and hopelessness and tell workers that you can’t make a difference…and you should just not organize,” said Davida Sotelo Escobedo with North Bay Jobs With Justice. “It’s a matter of workers having the power to step up and hold companies accountable.”