Senators Bill Cassidy and Ted Budd have expressed outrage over the idea that there is worker exploitation in the H-2A visa program. They claim besmirching the H-2A program is demonstrating a bias against farmers. The disconnect from reality exposed by Senator Cassidy and Senator Budd is great proof of the problem faced by those trying to restore sanity to our immigration system. These Senators are angry at a Department of Labor (DOL) official who spoke to investigators looking into abuse within the H-2A program. Mind you, they are not angry at the abuse exposed in the report. Rather, they are angry that a government official would expose the truth.
This is the equivalent of the famous line in the classic movie, Casablanca, when Captain Louis Renault is shocked to hear of gambling in the establishment as he collects his winnings. For the benefit of educating these Senators, it is helpful to make clear right off the bat that H-2A is rife with abuse. This has been going on for a long time, and it is beyond dispute. The report they disparage is not the only evidence of abuse within H-2A. The DOL includes the agriculture industry in their “Low Wage/High Violation” list consistently. Senators Cassidy and Budd may be unaware, but like the X-Files always said, the truth is out there.
When reading the reports and lawsuits from H-2A workers, common themes consistently arise: seizing of passports, wage theft, illegal recruitment fees, threats of deportation, squalid living conditions, low pay for long hours, minimal and rotten food, threats of violence, and actual violence. You can believe these consistent stories are all lies and the agricultural employers are unfairly maligned. But the eyewitness accounts of workers carry a lot of weight, and when you combine it with studies from academics and investigations from the DOL, the preponderance of evidence is overwhelming.
However, these Senators propose an alternative view. So let’s take a look at some of the claims made by the Senators to see if they align with the facts in reality. Here is a claim they make regarding wages:
“The governing regulations set forth specific rules regarding the wage farmers must pay workers employed under the program, none of which involve “wage theft.”[8] Contrary to Mr. Rios’s assertions, farmers must pay H-2A workers “a wage that is at least the highest of” the Adverse Effect Wage Rate (AEWR), an approved prevailing wage rate, a collective bargaining wage, or the federal or state minimum wage.[9] The AEWR does not allow for H-2A labor to earn less than domestic farm workers.[10]”
While they are quite right about what the regulations require, the Senators do not realize, or they refuse to acknowledge, that rules without enforcement are mere suggestions. The Economic Policy Institute (EPI) found that during the pandemic H-2A workers and agriculture workers broadly were vastly underpaid even compared to other low wage workers. EPI has also found that DOL investigations discovered millions in wage theft against agricultural workers annually. While the Senators want to focus on what the regulations say, the truth in the real world is that wages are stolen from an already low paid group of employees.
Next the Senators deny the reality of forced labor and indentured servitude within H-2A:
“Regulations also require farmers to provide housing and cover transportation to and from the worker’s home country.[11] Mr. Rios’s claim that the H-2A program is equivalent to human slavery therefore finds no support in law or fact. It is also inflammatory and unbecoming of a senior federal official. If the officials tasked with enforcing the H-2A program believe the system amounts to “wage theft” and “the purchase of humans to perform difficult work under terrible conditions,” then either DOL is currently unable to competently enforce the law or these statements reflect a startling bias against American farmers who use the program.”
Certainly the regulations do not endorse slavery, but it is happening in fact. There have been guilty pleas for forced labor within H-2A recently. There have been class action lawsuits filed alleging forced labor. Another lawsuit alleged indentured servitude within H-2A. The Senators think they have a “gotcha,” here, but the truth is DOL clearly cannot competently enforce the law because there are far too many workers for their limited staff to oversee. But Congress does not want to hear that, so we just deny the reality.
Instead of acknowledging the reality of labor violations, the Senators know the real victim:
“The senior DOL official makes these statements as American employers face a persistently tight labor market, with the number of job openings in recent months higher than before the onset of the COVID-19 pandemic.[12] Labor shortages are particularly acute in the agricultural sector, which have led to decreased production and higher food costs for American families.[13] The program “provides a guaranteed, stable workforce to growers who in the past may have struggled with recruiting or retaining local immigrant workers hired on a seasonal basis.”[14]”
That’s right, the real victims in all of this are the employers facing the dreaded tight labor market. The senior DOL official telling the truth about abuse is more concerning to them than the forced labor and wage theft conducted by the agricultural employers. As for labor shortages, what about discrimination against American workers by agricultural employers? The Economist reported on ag employers forcing African-American workers to train their white H-2A replacements and then calling the American workers lazy. Agricultural employers also are the largest violators in the labor black market with roughly 40 percent of the ag workforce hired illegally. This despite the fact that the H-2A program is numerically unlimited.
It is very troubling to see U.S. Senators so disconnected from reality on this visa program. The agriculture industry is not above the truth or the law. Instead of attacking government officials for speaking the truth, they should be troubled by the exploitation right in front of their faces. How many labor certifications for H-2A have Senators Cassidy and Budd reviewed? How many lawsuits and in-depth investigations have they read? Ignorance is no defense when the evidence is raining from the heavens. Yes, there are extensive regulations governing treatment of H-2A workers and they are violated all the time. Perhaps they can realize that the issue is not the lack of regulation, but the inability to enforce at scale. At the very least, we can hope they abandon denial as a response.
JARED CULVER is a Legal Analyst for NumbersUSA
