Worker ‘Self-Advocacy’ Key to Labor Department’s H-2A Proposal

The US Department of Labor is leaning on unions and collective action to improve protections for foreign farmworkers, with the idea that their increased ability to advocate for better working conditions is essential to helping US workers as well.

The DOL’s proposed rule, released Tuesday, would provide various protections such as allowing farmworkers on H-2A visas to invite union representatives onto employer-provided housing, banning coercive captive audience meetings, and requiring that employers provide a list of workers to labor organizations that request them.

It follows a new policy from the Department of Homeland Security that streamlines the process for immigrant workers to seek deportation relief when they cooperate with labor investigations.

These ideas aren’t new, but the proposal advances a theme of worker “self-advocacy,” said Ruben Garcia, professor of law and co-director of the Workplace Law Program at the University of Nevada, Las Vegas, William S. Boyd School of Law.

“DOL and any other agency can’t be everywhere at all times. The goal is to have some other eyes on the workplace,” he said. “In most cases, a labor organization, a union does that monitoring when a government can’t or won’t.”

Gap in Labor Law

The H-2A program allows agricultural employers to hire foreign workers for temporary and seasonal jobs when they can’t find adequate domestic labor, and where doing so wouldn’t adversely affect US workers.

Demand on the program has grown rapidly over the past decade. DOL argues that demand is partly the result of the poor working conditions that come from inadequate protections for organizing activities.

Farmworkers on H-2A visas aren’t covered by the National Labor Relations Act, the federal law guaranteeing private sector workers’ right to organize for better conditions on the job. But that omission is precisely what allows the DOL to expand similar rights via regulation, attorneys say.

“What that does is open up a window within which the Department of Labor could act,” said Jennifer Gordon, a professor at Fordham University School of Law who focuses on labor and migration issues. “The fact that H-2A workers are not covered by the National Labor Relations Act doesn’t mean they’re not allowed to have those protections; it means Congress hasn’t said anything about those protections.”

Fourteen states including California, Washington, and Arizona have adopted laws guaranteeing the right of farmworkers to bargain collectively.

Just 1% of agricultural workers nationwide are unionized. But more states are becoming attuned to that lack of protections for agricultural workers is a problem, Garcia said. New York, for example, most recently passed a law that took effect in 2020 extending the right to unionize to farmworkers.

The DOL proposal stops short of providing full collective bargaining rights to H-2A workers, Gordon said.

“What they’ve done is said, look employers, you can’t do these things that would stop H-2A workers from coming forward to defend the rights they have by law,” she said.

Advocacy by workers themselves is critical to holding employers accountable for violations, said Rachel Micah-Jones, executive director of Centro de los Derechos del Migrante.

“If workers aren’t able to participate in investigations and organize on the job, any enforcement efforts are going to be limited,” she said.

Employer Resistance

Yet the DOL’s approach is likely to get pushback from growers.

The proposed regulations raise concerns about agency overreach by the DOL, said Shawn Packer, a principal at the JPH Law Firm and a former Labor Department official under the Trump administration.

“Additionally, it will create a great burden in time and burden and cost to growers in an already low margin industry to comply,” Packer said in an email. “It remains to be seen, if this were implemented if employers would abandon this critical workforce program and thus we simply import our fresh fruit and vegetables and revert to less labor intensive agriculture production in the U.S.”

Employer groups already have sued to block two previous H-2A rules issued by the DOL.

The first, issued last year, raised prevailing wages and standards for working conditions, while a second rule finalized in February requires that workers be paid the highest applicable wage when they perform multiple occupations.

Litigation over both rules is ongoing.

Packer also questioned whether the latest proposed rule circumvents the 2021 US Supreme Court ruling in Cedar Point Nursery v. Hassid, which found invalid a California regulation requiring union organizer access to agricultural employers’ property.

Organizing Challenges

The proposed regulations are good policy but won’t on their own lead to more organization of farmworkers, said William Gould, a professor emeritus at Stanford Law School and former chair of the National Labor Relations Board and California Agricultural Labor Relations Board. That’s because unions have not been actively committed to organizing those workers, he said.

“Nobody needs help more than these workers and nobody receives less of it than them,” Gould said.

The United Farm Workers countered that it is actively organizing in states including California, Washington, and New York.

The union has added 600 members from the H-2A workforce so far this year, said Elizabeth Strater, UFW’s director of strategic campaigns, with a boost from the New York law granting farmworkers rights to organize.

Organizing farmworkers is extraordinarily hard, Strater said, in part because most states lack a mechanism to compel employers to recognize unions and collectively bargain over work conditions, she said.

Having rules that reflect the need for more transparency and labor organizations’ legal access to workers and the workplace will be important to those efforts, she said.

“No one of these things is some kind of silver bullet so that suddenly you’re working on a level playing field,” Strater said. “It is heartening to us to see really mindful efforts to disrupt strangleholds on power that can be so dangerous to farmworkers.”