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News from EPI 70% of all investigations in agriculture detected violations of federal wage and hour laws and farm labor contractors are the biggest violators: Policymakers must do more to protect farmworkers and hold employers accountable

A new EPI report analyzes data on federal labor standards enforcement efforts in the agricultural industry over the past two decades. The authors find that 70% of investigations of farms by the Wage and Hour Division (WHD) of the U.S. Department of Labor found employment law violations. Farm labor contractors, the fastest-growing segment of farm employment, were the worst violators, accounting for one-quarter of all federal employment law violations in agriculture.

The report’s authors—Director of Immigration Law and Policy Research Daniel Costa, Professor Emeritus of Agricultural and Resource Economics at the University of California, Davis, Philip Martin, and Zachariah Rutledge, a post-doctoral researcher at Arizona State University—also explain that a relative handful of “bad apples” accounted for a large share of all violations and back wages owed among the employers who were investigated. In fact, the 5% of the investigations with the most violations accounted for half or more of all violations in particular commodities.

Farmworkers are some of the lowest-paid workers and most either lack an immigration status or have a temporary status, which makes it difficult for them to complain about workplace violations. Meanwhile the COVID-19 pandemic has exposed how the often exploited and essential farm workforce that is feeding Americans is not sufficiently protected. Farmworkers are covered by the federal Fair Labor Standards Act, but many are not covered by the overtime provisions that other workers receive, except in the few states that have passed laws to fill the gap. Federal labor law also exempts farmworkers from basic protections under the National Labor Relations Act, including the right to form and join unions, and to engage in protected, concerted activities to improve workplace conditions.

“The immigration status of farmworkers, fear of retaliation and deportation, and even the perception that WHD will not take action or will fail to obtain meaningful remedies can contribute to farmworkers not reporting violations,” said Costa. “Thus, the violations that are actually detected as the result of WHD investigations may be the tip of the iceberg when it comes to workplace violations suffered by farmworkers.”

In addition, the COVID-19 pandemic has exacerbated the already-extreme vulnerabilities of farmworkers, who are considered ‘essential’ workers because they help to secure the U.S. food supply. Some farmworkers have paid a high cost, getting sick or dying. “It is urgent that the incoming Biden administration prioritize the health, safety, and paychecks of farmworkers,” Costa added.

WHD conducted more than 31,000 investigations in U.S. agriculture between fiscal years 2000 and 2019, ordered $76 million in back wages to 154,000 farmworkers, and assessed $63 million in civil money penalties for violations (in 2019 dollars). However, funding for WHD and the number of WHD investigators has declined in recent years; the total number of investigators in 2019, at 780, was fewer than it was nearly five decades ago. Because of this, farm employers have just a 1.1% chance of being investigated in any given year.

“With such a small share of farm employers investigated in any given year, most employers do not expect to be investigated, so investigations may not deter violations,” said Martin. “Policymakers must reassess the sanctions and penalties that are levied for violations, with particular scrutiny on farm labor contractors, to deter bad actors from violating employment laws.”

In addition to considering increasing the monetary amounts of civil fines and sanctions, the authors offer technical recommendations to Wage and Hour staff to help detect violations and improve compliance among farm employers. They also urge advocates and unions to continue their good work to educate farmworkers about their rights and the process for reporting violations.

“The Wage and Hour Division should incorporate statistical analyses of investigations and employment data to inform investigators about which employers are most likely to violate employment laws,” said Rutledge. “As we recover from the COVID-19 pandemic, better targeting enforcement efforts could strengthen protections for the farmworkers who harvest and pack our food.”