Foreign Farmworker Misclassification Spurs Labor Agency Scrutiny

Carel Hanekom arrived in Northern Iowa from South Africa in the summer of 2021 expecting that he’d drive a truck hauling grain and chicken manure on a farm.

Instead, he found himself assigned to weeks on the road transporting construction materials over hundreds of miles in Iowa as well as Nebraska and Minnesota—duties that fell outside of his temporary work visa for seasonal farmworkers.

The alleged fraud cost Hanekom $37,000 in lost wages, he alleged in a lawsuit against his employer and the labor contractor that hired him through the H-2A visa program. In petitions for temporary work visas, the companies misrepresented his work to the federal government as limited to work on a farm, his lawsuit alleged. A bid by the contractor to dismiss the case was rejected in June.

Investigators at the US Labor Department, armed with new enforcement tools thanks to a 2023 overhaul of wage regulations, say they’re homing in on similar instances of worker misclassification in the H-2A temporary visa program for seasonal farmworkers. Such misrepresentations could involve workers who should be paid more for their job duties or who may be doing work that shouldn’t qualify for the agricultural visas at all.

Worker advocates say misclassification in the program, which has seen visa use increase dramatically, is a growing concern. On top of lost pay, those abuses can create safety issues for foreign employees and deny job opportunities to American workers, they say.

“There are many workers employed in the H-2A program who really shouldn’t be either because it’s not agricultural work or it’s not temporary and seasonal,” said Lori Johnson, legal director and senior attorney at Farmworker Justice, which is helping represent Hanekom in his lawsuit. “It’s a different type of work than what they signed up for.”

An attorney for the labor contractor still fighting Hanekom’s claims didn’t respond to a request for comment.

Johnson and other advocates said some employers misclassify workers to pay lower wages or avoid federal overtime laws. Others may be trying to avoid a cap for other temporary work visas that have been exhausted by growing employer demand by using the H-2A visas, which have no annual limit.

Recent Litigation

The Labor Department in June announced more than $350,000 in penalties—including $288,719 in back wages—for a Fremont, Calif., construction company that misrepresented the work assignments of 43 Mexican workers hired through the H-2A program.

That followed a lawsuit brought by Mexican truck drivers in the Northern District of California alleging a farm labor contractor misclassified them as field hands to avoid paying higher wage rates. And oral arguments concluded earlier this year in the Western District of Louisiana over a case brought by six Mexican workers who said a sugarcane processor improperly classified them as agricultural workers, denying them federal overtime protections.

While there haven’t been a significant number of enforcement actions taken against employers for misclassification, the DOL’s Wage and Hour Division says it expects to issue more sanctions over the next year as new investigations advance. The problem is difficult to quantify, they say, but common in occupations like trucking and construction.

“It’s something we see with enough frequency that we are paying close attention to it,” a DOL official told Bloomberg Law.

New authorities under 2023 adverse effect wage rate regulations allow the agency to issue civil monetary penalties or, in egregious cases, to debar employers from the program. The rule also included a back wage remedy for affected H-2A workers.

The Labor Department has used its own internal data and referrals from advocacy organizations to help direct its investigative work. It also sought to educate farm employers and workers about the requirements of the law after last year’s rule took effect.

“We can’t be everywhere,” another DOL official said. “We want employers to be aware of what the law is so that they can comply and, obviously, we want workers to be able to complain.”

Advocates representing workers in misclassification cases say that tougher enforcement is needed to protect vulnerable foreign workers whose status is dependent on their employers and American workers denied job opportunities.

“The inability to speak up is big, whether it’s to say, ‘Hey I wasn’t trained for this’ or ‘I don’t know how to do this,’” said Peter Murray, a staff attorney at the Southern Minnesota Regional Legal Services’ Agricultural Worker Project.

Employer Response

There are some companies that game the system, but most are nabbed by regulators, said Wendel Hall, an attorney who advises farm employers using the H-2A program. In other cases, employers have been able to address discrepancies when identified on the ground by Wage and Hour investigators, he said.

“The vast majority of H-2A employers we deal with just want a clear rule, something they can follow practically in the real world,” he said of the 2023 wage regulations. “We so far have not received that from the Department of Labor.”

The agency should make clear that if a job duty is clearly described in application papers and approved as agricultural work, the DOL will respect the determination of the certifying officer, he said.

The reality of farm work is that it requires “a jack of all trades,” said Michael Marsh, president of the National Council of Agricultural Employers. But the 2023 wage regulations disregard a worker’s primary job duties, he said. The association is challenging the rule in court.

Marsh said he is doubtful that significant misclassification has occurred in the H-2A program or that US workers have been adversely affected, noting that the trucking industry is short 70,000 drivers. But, he added, “everybody’s got to follow the rules.”

“You may not like the rule, but as long as they’re there, everybody’s got to abide by the same set of rules,” he said.

More Oversight Sought

Many job openings simply shouldn’t be certified by the Labor Department as agricultural work to begin with, said Greg Schell, an attorney who represents migrant workers.

But a scarce number of H-2B seasonal visas for non-farm work has encouraged many employers to game the system by improperly pursuing H-2A visas instead, he said.

The government hasn’t sufficiently scrutinized worker petitions and doesn’t have the capacity to police violations after they’re issued, Schell said. The number of visas issued through the H-2A program grew by 64% between 2017 and 2022, surpassing 370,000 in just the past decade.

“They don’t have the personnel to go check those places,” Schell said. “The odds are pretty good you’re not going to get caught.”