By Griselt Andrade, Elana Gold, and Peter Murray
The ruby red strawberries in the produce section. The corn on the cob picked at the height of summer. The milk in your morning coffee. If you enjoy any of these or the thousands of other food products at the supermarket, thank a farmworker.
Today, there are over 54,0001 farmworkers in Minnesota and over 400,000 workers in agricultural production and processing.2 As a result of the hard work of farmworkers, Minnesota ranks fifth in the nation in agricultural production at $16.7 billion a year.
A growing portion of agricultural work is done by foreign workers brought to the U.S. on temporary visas through the H-2A temporary agricultural program. According to the U.S. Department of Labor, the program allows “agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S.”3 In Minnesota in 2022, there were approximately 3,455 agricultural workers on H-2A visas, which is nearly double the number of H-2A workers that came to Minnesota five years ago.4 H-2A workers perform agricultural work across Minnesota and even present in Hennepin County.
In addition to H-2A workers, thousands of migrant and seasonal farmworkers, many from Texas, travel to Minnesota each year. Often these workers work in vegetable canneries orwork the sugar beet harvest. Migrant and seasonal farmworkers are covered by unique state and federal laws, notably the Minnesota Migrant Labor Act and the federal Migrant and Seasonal Agricultural Worker Protection Act (AWPA).
With the use of the H-2A program on the rise, the focus of this piece is on the history of and regulations covering H-2A workers.
The H-2A temporary agricultural program allows agricultural employers who face a labor shortage to bring foreign workers to the U.S. to perform agricultural jobs that last ten months or less. Before they can hire H-2A workers, employers must show that they have tried and are unable to find U.S. workers to meet their labor needs. They must submit an application to the U.S. Department of Labor. In that application, employers agree to pay a minimum wage set by the U.S. Department of Labor, provide sanitary housing, safe transportation from their living quarters to the jobsite, and comply with any state or federal employment laws.
That is where our team comes in. The Agricultural Worker Project (AWP) is a specialized team within Southern Minnesota Regional Legal Services (SMRLS) that provides free, civil legal representation and education to agricultural workers in Minnesota and North Dakota. We go directly to worker housing to speak with workers about their rights. Our team hears first-hand the challenges that H-2A workers face in Minnesota.
The Historical Context for the H-2A Program
While the H-2A program may be relatively new, the plight of farmworkers in the United States is as old as the country itself. In the United States, agricultural production has its roots in slavery. When slavery was abolished, in the south, the apartheid systems of sharecropping and Jim Crow maintained an economic system where farmworkers continued to work in dire conditions. Similarly, out west in places like California, industrial agriculture depended heavily on exploited immigrant workers from Mexico and Asia.
In 1942, in the wake of labor shortages from World War II, the U.S. government created the Bracero program which allowed farmers to bring guestworkers from Mexico to work in the fields.
While most of the Braceros worked in California and Texas, the Minnesota sugar beet industry similarly recruited migrant workers from Texas and Northern Mexico starting in the 1920s. Over decades, migrant farmworkers from Texas and Mexico became integral in all Minnesota agricultural production. Many others settled in Minnesota year-round and formed Mexican communities throughout the state notably including the West Side Flats of St. Paul.
In the 1960s, Cesar Chavez, Dolores Huerta, and the entire United Farm Worker (UFW) movement were able to end the Bracero program because of the rampant human rights abuses. However, the U.S. government still allowed farmers to bring in foreign workers through the H-2 provision of the Immigration and Nationality Act (INA). Today, this is the basis for the H-2A program, which was formed in 1986.5
Importantly, the legal status of an H-2A worker is tied directly to their employment; if they quit or are fired, they risk deportation after a short grace period. This risk of deportation is a significant barrier to workers asserting their workplace rights.
With that in mind, we turn to several important regulations and laws protecting H-2A workers in Minnesota. We also describe common violations workers report to our program. It is essential for workers to be educated about their rights. It is also important for employers and their attorneys to pay careful attention to all the laws and regulations governing the H-2A program and support workers who attempt to assert their rights.
H-2A Regulations
The worker protections set forth in the H-2A regulations are now a significant part of the U.S. labor and employment law regime. The H-2A program has a comprehensive regulatory framework. H-2A employers must abide by rules covering everything from meal allowances for workers to wage rates to housing conditions. 6
For example, each year, H-2A housing must be inspected by state or federal officials to ensure that at least the minimum housing requirements are met before workers can live in the housing. Additionally, employers are required to provide safe vehicles for transportation from their living quarters to the jobsite, and at least a weekly trip to a town where they can accomplish errands like banking and grocery shopping.
Despite these inspections and requirements, we encounter workers who live in substandard housing or are not provided rides to town for necessities.
Employers who hire H-2A workers must pay the visa fees and travel costs of workers who travel from their hometown to the farm in the U.S. and back home. H-2A employers must also reimburse workers who pay their own transportation to the U.S. within the first week of work. H-2A workers have the right to be reimbursed for transportation and food costs from the place of recruitment to the employer’s worksite by the 50% mark of the contract period at the latest. If these costs deducted from the worker’s first week of pay make the worker earn less than $7.25 for each hour worked (the federal minimum wage), reimbursement must be made in the first week of work to raise the hourly wages to at least $7.25 per hour.7
We see workers not reimbursed for their travel expenses, which can be very expensive when workers come from countries as far away as South Africa or Moldova. We also see workers forced to find their own transportation when employers do not provide it.
In exchange for securing a reliable workforce, farmers must comply with numerous H-2A regulations. Importantly, H-2A regulations protect workers who speak up about their rights. Our program engages in outreach to educate workers about their rights and represents workers whose rights are violated.
Overtime for Farmworkers in Minnesota
A critical wage protection for farmworkers in Minnesota is overtime. The federal Fair Labor Standards Act excluded farmworkers from most protections when it was passed in 1935.8 To this day, farmworkers remain excluded from federal overtime laws.
Minnesota is one of only eight states where agricultural workers are covered by state overtime laws.9 With a few exceptions, agricultural workers who work more than 48 hours in one workweek in Minnesota are entitled to overtime at one and one half times their regular rate of pay.10 Often times, H-2A workers are unfamiliar with the legal system and do not know they have the right to receive overtime pay.
We speak with H-2A employees who work 80, 90, or even 100-hour workweeks during busy planting and harvest seasons in Minnesota. For example, recently, two H-2A workers contacted our program after working two seasons for a farmer without receiving overtime pay. Each individual worked long hours in both seasons. At the start of each season, the employer made the workers agree to work without receiving overtime. However, the Minnesota Fair Labor Standards Act prohibits employers or employees from waiving their right to overtime.11
Both workers contacted our program at the end of their season with the employer. It is common for workers to contact us at the end of the growing or canning seasons because they fear retaliation while they are working. The Minnesota FLSA permits a worker to bring an action for unpaid wages for up to two years after the underpayment (three years if the wage violation was willful). Together our clients were owed tens of thousands of dollars in unpaid overtime and penalties. After making a demand, the employer settled both workers’ claims for the full amounts.
And we know that our clients are not alone. Mike Rio, a regional agricultural enforcement coordinator with the U.S. Department of Labor recently told reporters that “wage theft is literally ‘baked into’ how the program operates.”12
Conclusion
Thousands of H-2A workers come to Minnesota and contribute to our robust agricultural economy by working long and hard hours. When enforced, H-2A regulations and Minnesota’s wage laws safeguard workers so that they are treated fairly for the work they do.
If you are interested in volunteering to represent farmworkers, contact us at 1-800-652-9733 or awp@smrls.org.
Griselt Andrade is the Lead Attorney with the Agricultural Worker Project at Southern Minnesota Regional Legal Services. Elana Gold and Peter Murray are staff attorneys with the Agricultural Worker Project.
NOTES
5. This history was drawn from David Bacon, The Oakland Institute, Dignity or Exploitation: What Future For Farmworker Families in the United States? (2021).
6. 20 C.F.R. 655.100 – 655.304
7. Arriaga v. Florida Pacific Farms LLC, 305 F.3d 1228, 1242-44 (11th Cir. 2002)
8. For a detailed history of the racial discrimination behind the exclusion of farmworkers from the FLSA, please see Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 Texas L. Rev. 1335 (1986).
10. Minnesota Fair Labor Standards Act, Minn. Stat. 177.25 (2011)
11. Minn. Stat. §177.27, subd. 8 (2019). For employees covered by the federal Fair Labor Standards Act
12. Tina Vasquez, Human Trafficking or a Guest Worker Program? H-2A’s Systemic Issues Result in Catastrophic Violations, PRISM, https://prismreports.org/2023/04/14/h2a-visa-wage-theft-exploitation/ (Apr. 14, 2023).