FILE - A farmworker, who declined to give her name, breaks up earth, July 1, 2021, near St. Paul, Ore., as a heat wave bakes the Pacific Northwest in record-high temperatures. Earlier this spring, the U.S. Department of Labor announced increased protections for seasonal foreign farmworkers under the federal H-2A agricultural program.
Nathan Howard / AP
Earlier this spring, the U.S. Department of Labor announced increased protections for seasonal foreign farmworkers under the federal H-2A agricultural program. While some advocacy groups praise the new rules, some say they are skeptical government agencies have the capacity to fully enforce them.
Seasonal farmworkers can often endure hazardous working and housing conditions, and because of their immigration status, they might be more vulnerable to wage theft or employer retaliation.
The H-2A program allows agricultural employers who anticipate a shortage of domestic workers to hire temporary foreign farmworkers. In Oregon, there were 4,389 of these H-2A workers in 2023, a number dwarfed in comparison to California, with 40,798 workers and Washington with 35,680, according to U.S. Department of Labor data.
The new rules aim to empower farmworkers to assert their legal rights without fear of retribution and allow workers to invite labor organizers to on-farm housing. The rules also seek to hold H-2A employers more accountable when they violate federal requirements.
Laurie Hoefer, the farmworker program director for Legal Aid Services of Oregon, said she’s cautiously optimistic the new rules can improve worker rights.
Hoefer said one of the significant rule updates focuses on clarifying start dates for workers.
Previously, many workers under the H-2A visa program would arrive at a farm site only to find out they had to wait to work because the employer set the start date too early. Now, if employers do not timely adjust the start dates, they will need to pay the farmworker up to 14 days of pay for the time they waited for work to begin.
“We think this will encourage employers to include more accurate start dates in their job orders and provide workers with the economic means they need to feed and support themselves and their families during this waiting time,” Hoefer said.
Another significant change, Hoefer said, is a clarification on when a termination is “for cause,” which could protect farmworkers against retaliation and unjust dismissal.
While farmworkers in Oregon have more protections compared to other states, like heat and wildfire smoke protections and overtime pay, Dagoberto Morales, the director for NOWIA Unete Center for Farm Worker Advocacy in southern Oregon, said it’s hard to get a hold of state agencies to enforce other rules like wage theft or unjust terminations. Some agencies might not pick up the phone, he said, or offices might be closed by the time a worker is off their shift. He added most farm workers tend not to leave voicemails either, out of distrust.
“There’s a lack of capacity, and a lack of understanding,” Morales said in Spanish. “Even us [UNETE] when we file a complaint on behalf of a worker, we know how to do it. It’s already frustrating enough. Imagine a worker that does not know how to file a complaint or has the ability to do so, it’s frustrating.”
Morales said state and federal agencies tend to be understaffed and behind on many cases. He said, on top of that, he knows many workers prefer not to file complaints out of fear of losing their jobs or being forced to leave the country.
“It’s hard to know how they can prevent [exploitation and abuse], when they’re not available, they take too long,” He said. “There’s too much bureaucracy, it’s not simple.”
One of those agencies, the Oregon Bureau of Labor and Industries, charged with investigating complaints such as wage theft, admits it’s receiving far more reports than it can handle.
That agency currently employs 10 labor standard investigators, each managing caseloads of more than 200 claims, yet investigators can usually fully complete about 85 cases per year, according to Rachel Mann, the communications director for the bureau. In a statement to OPB, Mann said the average total time from when a claim is filed to when a resolution is reached is about 13 months.
“This is in large part due to a significant increase in claims received by the agency over the past few years without increased capacity within the agency to process and investigate these claims,” Mann said.
She said the bureau receives, on average, about 50 agriculture-related complaints per year — and those tend to bring additional complexities. That’s because employer records are often incomplete, plus many workers are paid on a piece-rate basis — a pay rate based on the amount of produce they harvest, plant or process.
Mann said the agency is taking steps to reduce its backlog, which includes establishing its Agricultural Compliance and Education Unit. That team includes two investigators and a part-time outreach coordinator focusing on agriculture investigations and working on outreach and education for both employers and workers.
“The reality is that waiting 13+ months for their paychecks is unacceptable for workers, as it often means they cannot pay rent, feed their families, or meet other essential needs,” Mann said. “Farmworkers, in particular, are highly vulnerable to wage theft due to factors such as language barriers, immigration status, and often working for unlicensed farm labor contractors.”
In the meantime, Mann said, the agency is seeking additional funding from the Oregon Legislature to be able to improve its services and handle more cases.
The new farmworker protection rules will be effective on June 28. Hoefer said she expects to see legal challenges against the rules.