As growers turn to Mexico for labor, workers turn to courts for wages

California’s nearly $50-billion agriculture industry is recruiting record numbers of seasonal farmworkers from Mexico as it confronts a years-long labor shortage exacerbated by the Trump administration’s crackdown on undocumented immigration.

Recruitment of seasonal foreign workers under the H-2A visa program soared to a record 20,905 so far this year — with hiring still underway for the winter desert season, according to a Times analysis of federal labor data. That’s more than double the number of workers recruited just four years ago, and an 11-fold increase across eight years.

Once a minor player in the H-2A niche, California now ranks fourth among recruiting states, behind top-ranked Florida, North Carolina and Washington, respectively, according to federal records.

The trend, evident since before President Trump was elected, is driven by a mix of demographic and political forces. The farm labor population in the U.S. is aging faster than the general labor force, while record low unemployment has opened up more lucrative jobs in the service and construction industries, labor expert say. Meanwhile, the Trump administration’s crackdown on undocumented immigrants has scared away local workers.

The rapid shift to contracted seasonal guest workers has created tensions in fields between local hires and the visa holders, and produced an uptick in fines and settlements over allegations of wage abuse.

The U.S. Department of Labor announced results this week of long-term investigations that recovered nearly half a million dollars in lost wages from 10 contractors and growers, mostly in Central Coast berry fields.

Those cases pale in comparison with a $2.2-million settlement this summer covering thousands of workers contracted by Salinas-based Foothill Packing to pick for industry leaders Taylor Farms California and Dole Fresh Vegetables.

“Left and right we’re seeing these workers being brought in and California laws are being violated,” said Cynthia Rice, director of litigation, advocacy and training for California Rural Legal Assistance, a nonprofit that led the case involving Salinas-based Foothill Packing, which contracted workers for Taylor and Dole. “Federal laws are being violated, and local housing laws are being violated.”

The vast majority of the foreign agricultural workers are hired through contractors such as Foothill and its larger California rival, Fresh Harvest. Headquartered in the Central Valley, Fresh Harvest recruited about 4,800 workers this year, making it the largest private contractor of H-2A workers nationally, according to the Labor Department’s Office of Foreign Labor Certification.

Growers say they are being stung by regulations they find ambiguous and difficult to follow, including how to account for travel time during the workday, which has been at the center of recent enforcement and lawsuits.

“It’s unfortunate that these things get cast as being more nefarious than they are,” said Jim Houston, administrator of the California Farm Bureau Federation, a nonprofit industry group. “When an employer makes a decision one way or another, it’s not to rob the employee.”

No private company hires more than 2% of the quarter-million H-2A workers nationwide, suggesting a highly fragmented niche with many players, according to Labor Department data.

That may be part of the problem, said Guadalupe Sandoval, managing director of the California Farm Labor Contractor Assn. “It’s growing so fast in such a short period of time that I think there are a lot of people jumping in who are not very well informed,” Sandoval said.

In the latest enforcement, the Labor Department charged about $85,000 in fines and recovered about $422,000 in lost wages for 443 workers for time lost mainly to transportation between fields. Other violations included failure to pay minimum wage, missing paychecks, unlawfully rejecting U.S. workers, failing to provide safe housing, and failing to meet safe transportation requirements for workers. The agency did not break down the violations or fines by employer.

Some of the violations apply to local hires as well as visa holders, particularly those involving compensation for time spent on company buses and vans traveling between fields.

The H-2A program adds another layer of rules. Foreign agricultural laborers must be provided transport from the U.S.-Mexico border to the area where they will work, and are entitled to employer-paid local lodging for the season as well as daily meals (or access to cooking facilities). Companies employing foreign guest workers also must show they made efforts to find and hire local applicants.

The lodging requirement has spurred contractors to buy up lower-tier hotels and urban apartments, adding more strain to the affordable housing gap in agricultural centers such as Santa Maria and Salinas. Activists say the housing crunch also has driven some contractors to cut corners, crowding more workers into seasonal lodging than is permitted, Rice said. “They get a house certified for maybe 12 or 15 workers and they jam in 20 or more,” Rice said.

Other workers are isolated on or near rural farms with little access to food outlets other than a roving catering truck, and find their meal vouchers don’t cover the amount of calories needed for long shifts in the summer heat, Rice added.

“The biggest issue is workers feeling that if they say anything, they’re going to be sent back to Mexico,” said Armando Elenes, secretary-treasurer of the United Farm Workers union, which has pushed back on efforts to ease regulation on H-2A contracts. Some foreign visa holders report being coerced to pick the same volume as local workers, without earning the “piece rate” premiums that local pickers earn per carton, above the minimum wage, Elenes said.

The use of visa-holding laborers has affected the power dynamic between growers and workers at a time when laborers could be demanding higher wages and better benefits, labor experts say. Locally hired workers — who may or may not have proper documents — fear deportation or replacement with H-2A laborers, whose wages are set by the federal government. And the visa holders fear they will not be recruited next season if they complain.

That makes it hard to fight abuses, despite a sharp increase in complaints registered at the field offices of California Rural Legal Assistance.

The group has focused its efforts on an issue shared by both types of workers: payment for time taken up by transportation.

California Rural Legal Assistance has made the case that employers providing company transport exert control over workers who effectively have no other reasonable way to move from one field to another. That makes their time on buses part of the wage-earning day, the group has charged.

Growers say their bus or van rides are a voluntary option for workers who have other means of travel, such as car and van pools.

Foothill Packing, along with Taylor and Dole, admitted no wrongdoing in settling the lawsuit brought by the legal assistance group on behalf of more than 3,900 workers over three picking seasons. Representatives of those companies could not be reached for comment.

Another lawsuit centered on payment for transportation time for strawberry pickers in the Santa Maria Valley is pending in U.S. District Court.

The Labor Department has slowly increased its scrutiny of the H-2A program in California and neighboring Arizona growing regions over the last five years. It won a rare injunction against an Arizona grower in 2017 over unsanitary and dangerous housing for H-2A workers, and in 2016, it fined a Salinas-area strawberry grower $2.6 million and temporarily banned him from the H-2A program over allegations that he demanded kickbacks from guest workers he recruited. It also won $235,000 in back wages and fines in 2016 from Foothill Packing over allegations that the company had fired locally hired laborers and replaced them with guest workers.