No, the bad apples in this title aren’t actually apples.
They are the small percentage of employers in the produce industry who violate federal labor standards, according to a review of the current H-2A program issued by Rural Migration News from the University of California at Davis.
The 5 percent of vegetable farms with the most employment law violations detected by the Department of Labor’s Wage and Hours Division (WHD) accounted for 71 percent of all violations from 2005 to 2019, according to a report by Daniel Costa, Philip Martin, and Zachariah Rutledge published by the Economic Policy Institute (EPI).
Similarly, the 5 percent of U.S. strawberry farms with the most violations accounted for 75 percent of all violations found on U.S. strawberry farms during fiscal years 2005–2019.
Nevertheless, agriculture’s standing among U.S. employers isn’t great as a whole. “Agriculture accounts for a much higher share of investigations and violations than its share of total U.S. employment,” says the EPI study. Agriculture accounts for about 1 percent of the American workforce but has 3 percent of all violations—that is, three times as much as its share of employment.
What kind of violations? Swindling workers out of wages, accepting bribes for H-2A employment, child labor, and negligent safety practices, to name a few. Most of these are covered under the Migrant and Seasonal Worker Protection Act, the chief law protecting U.S farmworkers, although H-2A workers are covered by their own set of provisions.
By the way, WHD investigations have dropped from over 2,000 a year at the beginning of the century to 1,100 in 2019, largely because agency funding has not kept up with the growth in the workforce. Actually, the number of WHD investigators in 2020 was 780—lower than 1973’s figure of 812.
Nevertheless, 70 percent of farm investigations and 75 percent of FLC investigations detected violations.
“The highest probability of finding a violation is 72% for fruit and tree nut farming, followed by 64% for vegetable and melon farming investigated,” the EPI study noted.
These high figures are probably due at least in part to a change in enforcement strategy implemented by former WHD administrator David Weil, which focused on investigating proactively instead of relying mostly on complaints filed by individual workers.
There “will never be sufficient resources to staff agencies to the level required to assure complete compliance with workplace laws, so there will always be a need for enforcement agencies to use their resources to achieve greatest impact,” Weil has stated.
If violations are concentrated among relatively few growers and FLCs, investigators are likely to look at them with a closer eye. In other words, they know where to look for likely lawbreakers.
A disproportionately large number of violations involved farm labor contractors (FLCs) and employers who use their services. This is partly due to what Weil has called a “fissured workplace”: that is, there is a break between the employer and the worker, namely, the middleman who stands between them.
If all of this is starting raise hackles about government workplace meddling, have no fear.
The EPI study adds, “Since only 1.1% of farm employers are investigated in any given year, farm employers can reasonably expect that they will never be investigated.”