LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
The New York Times article about health care reform in agriculture, “Tacking Health Care Costs Onto California Farm Produce” (Aug. 21) emphasized the views of the labor intermediaries, known as farm labor contractors, “who provide farmers with armies of field workers.“ The farm labor contracting system is a fundamental problem that deserved some explanation to help readers understand the conditions experienced by many farmworkers and their challenges regarding health care.
Farmers, many of them with big industrialized operations requiring large workforces, use farm labor contractors (FLCs) to fulfill their labor needs. FLCs may perform one or more roles, including recruiting, transporting, hiring, supervising, housing, and paying workers. In 1963, Congress passed the Farm Labor Contractor Registration Act, since replaced and expanded by the Migrant and Seasonal Agricultural Worker Protection Act of 1983, to regulate the use of FLCs due to widely publicized abuses.
Unfortunately, today abuses continue. Many farm operators, or “growers,” contend that they don’t employ any farmworkers on their farms. Rather, they claim that the FLC is the sole “employer” of the farmworkers who labor on the farmers’ property to cultivate and harvest the farmers’ crops. Frequently, such growers hope to escape responsibility, and liability, for paying the minimum wage, providing workers’ compensation coverage, paying Social Security and other taxes, providing drinking water and toilets in the field, and complying with immigration law. In other words, it’s often an avoidance scheme.
The farm labor contractors compete for business with growers against other FLCs by offering to provide them workers at lower and lower cost. As a 2008 USDA study found, the use of FLC’s is a factor “accounting for the relatively low earnings of farmworkers (Kandel, W. Profile of hired farmworkers. USDA Economic Research Service, p.22)." In many cases, the FLCs goal of fulfilling the growers’ quest for labor at the lowest possible cost leads to illegal practices, including failure to pay the minimum wage, violation of safety standards, and debt peonage. Too often the labor contractor cannot be found or has no assets to pay a court judgment for unpaid wages. And when one FLC is caught and punished, it doesn’t take much for growers to find a replacement.
One strategy to remedy and deter such abuses is to hold both the grower and the farm labor contractor responsible as joint “employers” of the farmworkers and therefore jointly responsible for complying with the minimum wage and other wage-hour laws, which have helpful definitions of employment relationships. A grower can still require a labor contractor to indemnify it when violations are found, but the worker would not bear the brunt if the FLC can’t pay what’s owed. Joint liability encourages employers to deal with FLCs who have the economic wherewithal and the will to comply with their responsibilities. Unfortunately, lawsuits often are necessary to force growers to accept joint responsibility.
The discussion of health insurance coverage for America’s farmworkers should begin, as it does for most workers in the United States, with their employers. The article, instead of focusing on farm labor contractors, should have focused on the real employers – the farm operators on whose land farmworkers labor to grow and harvest their fruits and vegetables.
© Copyright 2013 Farmworker Justice. All rights reserved. Reprinted with permission. This article originally appeared on Harvesting Justice, a blog by Farmworker Justice.
For more information about LexisNexis products and solutions, connect with us through our corporate site