United Farm Worker’s Position on Farm Worker Legalization presented at the National Association of Hispanic Journalist Convention, in Phoenix AZ, June 2001 by UFW General Counsel Marcos Camacho

Since it inception the UFW was been strongly involved in the immigration policies that affect farm workers in this country. The UFW was actively involved in the legislative process that resulted in the enactment of the Immigration Reform and Control Act of 1986 (IRCA). The UFW represents and organizes farm workers in several states, including California, Washington, Arizona, Texas, and Florida. The Farm Workers that our organization works with include workers that work in wine grapes, table grapes, raisin grapes, citrus, row crops such as broccoli, lettuce, celery, tomato and other vegetables, mushroom plants, nurseries, tree fruit, and roses. The UFW representation of and day-to-day work with farm workers in various states and in various crops for the last 38 years gives it a unique background and experience to provide meaningful comments and insight into the issues concerning immigration policy and how it affects farm workers in this country.

There is really no dispute over the economic realities facing America’s farm workers at the beginning of the 21st Century. The most recent and reliable information we have from the National Agricultural Workers Survey shows that the situation of farm workers has continued to decline: wages have stagnated, annual earnings remain beneath the poverty level, and farm workers face chronic unemployment.

1) In 1997-98, most farm workers held only one farm job per year and were employed in agriculture for less than half a year.

2) Even in July, when demand for farm labor peaks in many parts of the country, just over half of the total farm workforce held agricultural jobs.

3) Since 1990-1992, the average work year in agriculture has decreased from 26 to 24 weeks.

4) At the same time despite a strong economy and record prosperity, farm worker wages have lost ground relative to those of workers in the private, nonfarm sector. Adjusted for inflation, the average real hourly wage of farm workers has dropped from $6.89 to $6.18. Consequently, farm workers have lost 11 percent of their purchasing power over the last decade.

5) Today fewer farm workers own a vehicle. More workers now rely on contractors and raiteros for transportation to work often in unsafe and uninsured vehicles.

6) Another large change is in home ownership. In 1994-95, one third of all farm workers owned or were buying a home. By 1997-98, only half as many farm workers were buying their home.

United States agriculture has been dependent on foreign labor for a long time. The most recent statistics show that 81% of the 1.6 million seasonal agricultural workers in the United States were born outside the United States.

However, United States agriculture is also increasingly dependent on an influx of new immigrants as large numbers of farm workers leave the fields for better-paying non-farm jobs. This continual outflow results in an unstable labor market that requires constant replenishment from abroad. Thus, the agricultural labor market serves as the entry point for low-wage immigrants for the entire U.S. economy.

We know why farm workers leave farm work. They leave because of the difficulties of making a living from U.S. farm work. The majority of migrants and former migrants live in poverty, endure poor working conditions, and receive no government assistance. Only those migrants with few alternatives stay in farm work. This results in an aging legal workforce composed of workers with little education and lacking English, whose improvements in working standards are continually undermined by new workers willing to work for less.

The poor living and working conditions of farm workers in the United

States are mainly due to farm labor practices that shift production costs to workers. In particular, the farm labor system relies on temporary jobs, uses labor contractors for labor management, and recruits workers in a way that results in a chronic oversupply of labor. Each of these practices reduces employer costs at the expense of worker earnings. The other factor in the poor living and working conditions of farm workers is the continued exclusion of farm workers from coverage under labor laws, which protect other workers. Today, more than 60 years after the passage of the National Labor Relations Act, the majority of farm workers in the United States are without collective bargaining rights. In 13 states, farm workers are not protected by workers compensation insurance. Despite being chronically unemployed and underemployed, few farm workers are able to qualify for unemployment compensation. Farm workers still are not entitled to overtime under the Fair Labor Standards Act. Given these realities, it is not surprising that workers leave the fields.

We believe that the current labor practices in U.S. agriculture are unsustainable in the long term and, unless fundamentally changed, will continue the socially destructive economic hardships faces each day by the farm workers throughout this country while at the same time doing severe damage to U.S. agriculture’s global competitiveness.

Therefore, the real controversy is over what should be done to bring about this fundamental change. There are currently two radically different solutions proposed to address the problem of labor market instability in agriculture.

One proposal is to create a large-scale guest worker program along the lines of the Bracero program of the 1950s. This can be done either by stripping out the labor protections for U.S. and foreign workers from the existing H-2A program or by creating a new program similar to the one proposed by Senator Phil Gramm. In either case, there would be no effort to improve wages and working conditions for farm workers in the United States. The growers seek to maintain the status quo or even to reduce wages still further.

However, the guest worker option would stabilize the labor market by denying the farm workers the basic freedom to change employers. The key attraction for employers of guest worker programs such as H-2A and H-2B is that workers can only work for the employer who holds their visa. The H-2A employer does not have to worry that his employees may leave him for an employer who offers better pay or working conditions. Thus, there is no incentive under such programs to ever improve wages or working conditions.

H-2A workers are not slaves but neither are they free. If they run away from the farm, the INS will seek to deport them and bar them from future entry. If they complain about their treatment, they can be certain that their employer will not request them in future seasons and they risk being blacklisted from the program altogether. We understand that other control measures such as forced savings, which will only be returned to the worker after his return to his home country, are also under consideration. As the program expands, we believe that these measures would have to become increasingly draconian in order to keep the "guest workers" on the farms.

We remain opposed to such programs because without the basic freedom to change employers, all the supposed legal protections for the workers are more theoretical than real. As long as a worker’s future employment as a guest worker is dependent on his employer’s good will, the guest worker is not in a position to exercise his legal rights. Nor can we rely on DOL to protect the workers’ rights. Unfortunately, our long experience with the H-2A program has shown, time and time again, that the government will not stand up against powerful special interests.

In the end, a large-scale guest worker program would create a caste of despair where some members of our society would be trapped in substandard employment without the possibility of social and economic advancement.

Over time, America would become dependent on the continued exploitation of these workers in the same way that the South became dependent on slavery.

We believe that such a system is the opposite of our most cherished national values and beliefs.

We believe that there is a better answer.

If we want to slow the influx of new immigrants and stabilize the agricultural labor market, we need to address the root cause of the instability ? the poor wages and working conditions of farm workers in America? and divert the costs of instability from the farm workers back to the employers, taxpayers and consumers who benefit from their labor.

The first step is to adjust the status of the undocumented farm workers already here. For poor workers all over the world, the first step is always freedom. Legal status gives workers the freedom to choose ? freedom to choose whom they work for and whom they don’t work for, and the freedom to join a union of their fellow workers to protect their interests collectively. A free labor market will create economic incentive for employers to attract and retain workers by offering better wages and working conditions.

Legalization by itself is not enough. We need to do what should have been done decades ago and extend to farm workers the same legal protections and benefits enjoyed by other workers. Legalization itself will make many farm workers eligible for unemployment insurance and the earned income tax credit, which can significantly increase farm worker incomes at little cost to agricultural employers.

And we need to organize. The history of immigration in the 20th century clearly shows that strong unions offer new immigrants one of the best routes to full integration into American life.

It is with this understanding of the underlying problem and its solutions that the UFW has attempted to find a compromise with the agricultural employers. The union has sought to find a compromise that would (1) create an adjustment program for hundreds of thousands of undocumented farm workers and their families in the U.S. and (2) respond to employer demands to reduce "red tape" in the existing H-2A guest worker program without weakening labor standards. To this end, the UFW entered into direct negotiations with the National Council of Agricultural Employers ("NCAE") under the auspices of Reps. Howard Berman(D-CA) and Gary Condit (D-CA). Later, the talks were broadened to Senators Bob Graham (D-FL), Gordon Smith (R-OR) and Larry Craig(R-ID). Last fall, the UFW reached an historic agreement with the agricultural employers which had bipartisan, bicameral support and would have been enacted but for the last minute opposition of Sen. Phil Gramm, who opposed the adjustment or legalization feature of the agreement.

There are two parts to the compromise. One part would establish a new legalization program or "agricultural worker adjustment" program, based both on past agricultural work in the United States and a prospective work requirement. The other part changes the procedures and job terms under the H-2A temporary foreign agricultural worker program.

Undocumented farm workers will be eligible to apply for temporary immigration status based on their past work experience which would place these farm workers on a track toward permanent resident status and accord them the full labor rights of American workers. As temporary residents, the newly legalized workers will have the same rights as permanent residents to travel abroad and to work outside of agricultural employment. However, they will need to perform additional agricultural work if they wish to gain permanent resident status.

To be eligible for temporary resident status, an individual will have to show that he or she worked 100 days in agricultural employment during any 12 consecutive months in the 18 months prior to enactment of the bill. The definition of "agricultural employment" is the same as under the Fair Labor Standards Act. Agriculture includes the cultivation and tilling of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural commodity, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operation. Work done as an H-2A worker is specifically included.

• To be eligible for permanent resident status, the worker will have to complete the following work requirements:
• The farm worker must work 360 work days in agricultural employment during the 6 year period beginning upon enactment of the bill.
• The farm worker must work 240 work days (out of the 360 work days) during the first three years of the program.
• Finally, the 360 days must be distributed so that the farm worker works at least 75 days in 3 12-month periods during the 6 year period of the program.

The compromise specifically provides for the spouse and minor children of the farm worker who may not be eligible for temporary resident status. Family members may not be deported from the U.S. while the farm worker is in temporary resident status; however, family members will not be eligible for employment authorization (unless the family members have some other status which allows them to work). When the farm worker completes the work requirement, family members may be included under the farm worker’s application for permanent resident status without the usual waiting time caused by per country limits.

The proposal also provides certain safeguards for workers while they are attempting to meet the prospective work requirements:

• Workers will be credited for any days lost because of an injury or disease arising out of the worker’s agricultural employment.
• An agricultural employer may not terminate a temporary resident except for just cause and an arbitration procedure would be set up to ensure that a worker who is fired without just cause is credited for any days of work lost as a result.
• The Attorney General has the discretion to waive the 240 day requirement in the case of a farm worker who has completed 200 days and fails to meet the 240 day standard because of a personal emergency or a natural disaster which limits the availability of agricultural work.

The 18-month application period for the legalization program would begin six months after enactment. Temporary residents would have until the seventh year after date of enactment of the bill to apply for permanent resident status.

The compromise also addresses concerns that H-2A employers had regarding making it procedurally easier to obtain H-2A workers. However, the UFW was able to preserve the substantive standards and worker protections found I the existing H-2A program and the UFW was able to add additional protections for H-2A workers. The compromise proposal would make the following changes to the current H-2A guest worker program.

• The H-2A system would be streamlined to become a "labor attestation" program modeled after the H-1B program with less paperwork and government oversight. The employer will be required to provide specific assurances that the terms and conditions of employment meet the standards set forth in the statute, unless the job opportunity in question is covered by a collective bargaining agreement with a bona fide labor union.
• Recruitment requirements would be reduced, but employers must still hire qualified U.S. workers who apply by the time one-half of the season has elapsed ("50% rule").
• Most of the basic H-2A worker protections will continue including the three-fourths minimum work guarantee, reimbursement of transportation and subsistence costs, and workers compensation. Some protections which currently exist only in regulations will become statutory.
• Growers remain obligated to provide free housing to their workers which meets government standards. However, growers will be allowed to provide a housing allowance in lieu of the free housing, but only where the Governor of the state certifies that there is adequate housing available for migrant farm workers and H-2A workers in the area of intended employment. The amount of the allowance will depend on whether the job is located in a metropolitan or nonmetropolitan county and will be based on fair market rentals as determined by HUD.
• Growers will also have to continue to pay the "AEWR" (the special minimum wage required to be paid H-2A workers) However, the AEWRs will be frozen at their current level until Congress has the benefit of two studies to be carried out over the next two years. One study will be done by GAO; the other study will be done by a Commission on Agricultural Wage Standards to be appointed by the Secretaries of Agriculture and Labor with equal representation of employers and farm workers. Unless Congress acts within the first three years of the bills passage, the AWER freeze will end and the current methodology would apply after that date.
• For the first time, H-2A workers will be covered by the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), the most important federal statute protecting farm workers in the work place. Among other things, the Act provides a private right of action for farm workers to enforce the terms of their working arrangements with their employers.

The changes to the H-2A program will go into effect one year after enactment.

At this time the agriculture industry has stepped away from our compromise due to the fact that certain H-2A employers are demanding that H-2A worker wages be reduced to prevailing wage, which in many cases would be the Federal minimum wage of $5.15 an hour as opposed to the wage that is presently required under the H-2A program that runs at about $7.25 an hour. The industry is also now refusing to have H-2A workers covered by AWPA. These are areas in which we will not compromise. Thus, once again it appears that the industry is considering taking the low road on these issues.

The UFW remains hopeful that the agricultural industry, will once again embrace the compromise, so that we can move forward with enacting this compromise into law. In any event the UFW will strongly oppose any move by the industry to weaken or eliminate worker protections and standards found in the current H-2A program.

For more information on farm worker legalization you might want to visit the California Rural Legal Assistance Foundation’s National Clearinghouse On Agricultural Guest Worker issues at http://www.crlaf.org/gworkers.htm