Guest worker program poorly run, critics charge

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From Sacramento Bee -- http://www.sacbee.com/111/v-print/story/1288107.html

Guest worker program poorly run, critics charge
By Susan Ferriss - sfer...@sacbee.com
Published 12:00 am PDT Saturday, October 4, 2008

On July 15, more than 180 people departed from Colima, Mexico, bound
for Sacramento-San Joaquin Delta farms for six months of work.

The terms of their journey were so special – they were going legally –
that Colima's state government threw a party to celebrate. The workers
carried H-2A farm labor visas, sponsored by a Delta employer who
promised wages of $100 a day, 40 hours of work a week, free housing
and low-cost meals.

After a month, some workers said, it proved too good to be true.

The housing was filthy, and meals were mostly beans. The workers had
fronted $600 to cover visas and travel costs, yet many were earning
little or nothing because there wasn't enough work.

As the U.S.-Mexico border tightens and immigration enforcement
increases, the Bush administration is expected to announce reforms to
make it easier for businesses to import H-2A workers.

Labor advocates and some prominent industry representatives agree,
however, that neither agribusiness nor government officials are ready
to manage an expansion that could make California the country's
biggest importer of legal guest workers.

California produces more food than any other state, and requires half
a million farmworkers at peak hiring. With many illegal immigrants now
filling those jobs – up to 70 percent, the industry estimates –
employers have seen little need to resort to the H-2A program.

This year, however, California employers showed more interest in the
decades-old program, requesting about 4,000 H-2A workers. That's up
from 2,500 in 2006, when 59,000 H-2A workers were approved for jobs
nationwide.

As numbers rise, labor advocates caution that wherever the H-2A
program has been used, they have found cases of mismanagement and
abuse and workers rarely briefed on rights or how to exercise them.

"There's effectively no oversight once H-2A workers enter the country.
These guys are stuck out in the boonies, and nobody cares about them,"
said Mark Schacht, deputy director of the California Rural Legal
Assistance Foundation.

The foundation and the separate California Rural Legal Assistance Inc.
filed a lawsuit Aug. 21 on behalf of two dozen Colima workers who say
the Salvador Gonzalez Farm Labor Contractor company violated its
contract with them.

Changes in the works

The H-2A program is designed to fill domestic labor shortages on
farms. State employment agencies certify an employer tried to hire
U.S. workers before the U.S. Labor Department clears the way for H-2A
workers to come in for up to 10 months.

To ensure U.S. workers' wages are not depressed, H-2A workers in
California must be paid at least $9.72 an hour. Their employer must
provide free housing that has passed state inspection and offer meals
that cost workers no more than $9.52 a day.

H-2A workers are strictly tied to their visa sponsor, barred from
working for anyone else. Advocates say the rule indentures them and
makes them likely to put up with violations of contracts.

Employers say H-2A rules include safeguards. Before workers return
home, for example, employers must pay them three-quarters of what pay
was promised during a contract, even if the laborers were not given
work the entire time.

By the year's end, the Bush administration will announce its changes
to the H-2A program. They could include allowing employers to give
workers housing vouchers instead of supplying them with quarters,
lowering wages and reducing requirements to prove employers tried to
hire U.S. workers.

Jack King, national affairs manager of the California Farm Bureau,
said employers want to use the H-2A program, but many businesses are
ill-prepared to manage large influxes now.

"We're pretty new to this," he said.

King said the industry, joined by labor unions, would rather see
Congress pass AgJOBS, a proposal that would allow undocumented
farmworkers to come forward and earn legal status if they stay in farm
work for three to five more years.

King said employers could use that time to build worker housing and
learn to manage the H-2A program.

"The recruitment element abroad is also key," he said, "having people
recruiting for you who are truly representing the facts."

More than ever, the H-2A program is being promoted abroad, with
governments in rural Mexican states and in Central America eager to
help match recruiters with constituents.

In the past, H-2A requests from California were mostly for individual
workers, such as sheepherders. Now employers, including labor
contractors, are requesting groups of up to hundreds of workers.

Workers sue over conditions

In 2002, CRLA Inc. sued Ralph de Leon, a Ventura contractor who
pioneered importing H-2A workers to the state and was accused of
underpaying them.

Harry Singh & Sons of San Diego, the nation's largest salad tomato
grower, was sued in 2006 to recoup back wages for thousands of H-2A
workers imported since 2002.

Also in 2006, CRLA Inc. received a tip about 400 H-2A workers imported
to prepare strawberry seedlings in Tulelake near the Oregon border.

In a lawsuit, workers said their employer, Sierra Cascade, housed them
in freezing, cramped quarters that once held Japanese American
internees during World War II. The Mexican workers also said they were
put on grueling production quotas that prevented them from taking
breaks.

Sierra Cascade's managers said the workers were not accustomed to hard
labor but reached a confidential settlement with them later.

After the workers sued, U.S. labor officials began to investigate
Sierra Cascade in 2007 and still decline to comment because they are
not done.

Records show that Sierra Cascade applied to sponsor more than 700 H-2A
workers this year to work between Sept. 15 and November.

A labor spokesman said employers can import H-2A workers while under
investigation as long as they comply with application rules.

Steve Fortin, a Sierra Cascade manager, declined to talk about H-2A
workers.

Gonzalez's workers said it was only by chance that they discovered
they could seek redress for contract violations.

Gonzalez spurned requests for improvements in conditions, they said.
One of them walked five miles from his camp to the nearest pay phone
and called a relative in Sacramento to ask for advice.

Cynthia Rice, a CRLA Inc. attorney, said lawyers chose to file suit
rather than first contact U.S. labor officials because they felt the
workers had a better chance at winning demands in court.

After the lawsuit was filed, federal labor officials visited the camp
and Gonzalez's office but declined to comment. A Labor Department
spokesman issued a statement that said the department investigates
employers only if an H-2A worker files a complaint.

More oversight needed?

In an interview, Salvador Gonzalez said he never used the H-2A program
until this year, when he went to Colima to recruit.

"I know the rules, and I'm trying to follow them the best I can," he
said.

He said he posted job notices at the California Employment Development
Department and took out newspaper ads for 200 workers, but only three
domestic workers responded.

On his H-2A application, Gonzalez wrote that he needed workers for 40
hours a week. But he said he ultimately didn't have enough clients
with crops ready for harvest or tending.

"We made a mistake," he said. "It wasn't intentional."

He said he is now keeping the workers busy.

Jaime López, 20, one of the workers, said that in Colima, no one was
told they might sit idle at times. Some of the workers gave up and
left Sacramento on their own, López said, forfeiting the money they
had invested for the trip.

Bruce Goldstein, director of Farmworker Justice in Washington, D.C. ,
said the Sacramento H-2A workers' experience shows that federal
officials, before signing off on more H-2A requests, should strengthen
oversight from the moment workers are recruited to after they arrive.

California has to do more, too, Rice said.

California housing inspectors, for example, certify that H-2A housing
meets standards. A Yolo County labor camp where Gonzalez placed
workers passed inspection earlier this year, but after the lawsuit was
filed inspectors returned and told Gonzalez to fix bathrooms and cover
blood-stained old mattresses.

The EDD, which certifies that labor shortages exist, conducts "random
field checks" of 25 percent of H-2A work sites in the state.

But Erlinda Cruz, who manages this EDD program, said, "We have to call
because we're entering private property."

The day before Gonzalez's workers filed suit, EDD inspectors visited
an orchard where some of his domestic and foreign hires were working.

No one complained, a report shows. None of those interviewed were the
H-2A workers who filed suit the next day.