Farmworker advocates say new federal rules could save lives, but Idaho AG helped block them

(InvestigateWest) — Denied hundreds of thousands of dollars in overtime pay.

Housed in buildings with mold, overflowing trash and broken smoke detectors.

Overcharged for unsanitary housing, and provided unsafe transportation to work.

These were some of the problems faced by scores of guest workers at a Payette, Idaho, onion processing plant, according to the U.S. Department of Labor. The company, Ontario Partners LLC, was ordered in August to pay nearly $270,000 in unpaid overtime wages to 76 workers, along with a $44,000 fine.

Similar cases happen across the country nearly every day, according to farmworkers, labor advocates and researchers. But few are investigated because employees in the growing federal H-2A guest worker program, who rely on their employers for housing, food and transportation, are fearful to speak out.

The problems in Idaho are particularly acute, advocates say, given a history of frequent workplace violations — coupled with the effects of a recent court ruling that blocked federal rules in Idaho and 16 other states intended to protect workers from retaliation if they seek to recover unpaid wages or report workplace violations.

Idaho’s agricultural employers have some of the highest rates of labor violations in the country, for both guest workers and other employees. The Department of Labor’s Wage and Hour Division inspectors found Idaho employers had an average of over 55 farm labor violations per investigation from 2005 to 2019 — the fifth-highest in the nation, according to the Economic Policy Institute. Oregon averaged 51 labor violations per inspection, and Washington had 43.

Idaho farmworker advocates are not surprised by those figures.

Boise State University professors and researchers Rebecca Som Castellano and Lisa Meierotto, who have studied Idaho’s farmworkers since 2015, said laborers who worked in both Idaho and Oregon noticed a difference.

“There would often be observations made about conditions being better in Oregon,” Castellano said. “And I think that has something to do with the regulatory environments and use of policy in the two states.”

Meierotto added, “We’ve had farm workers who are H-2A workers, and non-H-2A workers, who talked about how when they work in Oregon, they’re given more breaks, or there’s more shade available.”

Castellano said the nature of the guest worker program keeps workers isolated and completely dependent on their employers. She said employers often decide when workers can get transportation to go to the grocery store and monitor their living conditions. Guest workers are also thousands of miles from their homes, and often live in rural communities with limited resources.

A new set of federal rules intended to protect guest workers from retaliation if they speak up about problems on the job has gone into effect across the country — except in Idaho and 16 other states that successfully challenged the rules in court.

Idaho Attorney General Raúl Labrador did not respond to a request for comment from InvestigateWest, but critics of the new rules have argued that they are too burdensome for employers and would grant guest workers a right to unionize that citizen farmworkers don’t have. One representative of Idaho farmers argued that it’s difficult to keep up with federal rules governing the program and that even minor violations and the subsequent publicity can represent a “death knell” for farmers.

But lawyers in the case who represent a coalition of farmworker advocate groups across the country who support the rules say farmworkers in Idaho are now left open to employer retaliation that their counterparts in other states aren’t.

“Employers in the states where the Department of Labor rules are in place who are seeking H-2A workers now must guarantee they’re not going to intimidate, threaten or otherwise discriminate against workers who advocate for their own rights,” said Kelsey Eberly, a lawyer for FarmSTAND, who filed a brief in the case to support the new rules. “But in the states, like Idaho, where the rule (was blocked), workers don’t have protection.”

Program grows, along with violations

The guest worker program has become a lifeline for agricultural employers who are struggling to fill jobs. It allows some employers to bring in foreign workers to fill temporary agricultural positions, so long as their businesses meet requirements such as providing housing in good condition and safe transportation.

In 2022, employers asked Congress to expand the program to allow farmers to employ guest workers year-round to fill nonseasonal jobs, like those on dairy farms.

Last year, Idaho farmers employed more than 6,500 guest workers, according to the Department of Labor. Washington employed one of the highest numbers of guest workers in the country, with over 29,000 last year, compared with more than 16,000 guest workers on the job in Oregon.

As the program grows, violations of federal rules protecting those workers are common — regulators found them in nearly three-quarters of workplaces it investigated in 2019. The seasonal nature of the program and the workers’ reliance on their employer for their basic needs allows many workers to slip through the regulatory cracks.

In 2019, the Department of Labor’s Wage and Hour Division found that 5,000 guest workers nationwide were owed $2.4 million in back wages as a result of program violations, according to the Economic Policy Institute, a nonprofit think tank that studies labor and economic inequality. The department reported 12,000 violations of the program nationally, which is likely an undercount, because the department can only investigate a fraction of complaints — it investigated just 1.1% of them in 2019.

However, it found violations in 70% of those cases, according to an Economic Policy Institute report.

The new Department of Labor rules expanded the definition of unfair treatment by employers to include prohibitions against intimidating and discriminating against workers who advocate for themselves or who file a complaint related to violations of employment laws or rules.

The United Farm Workers, which is the largest farmworkers union in the nation, said the rules empower farmworkers to speak up if they are being underpaid or mistreated. The union interviewed dozens of H-2A, migrant and citizen farmworkers for a letter submitted to the Department of Labor in favor of the new rules.

In one case, an anonymous longtime guest worker in Washington said he wanted to ask for better treatment in the fields, but he held back because “I know the consequences if I speak up, and I don’t want to lose my job.” Another guest worker, Santos, said he wasn’t being paid his legal wage and wanted to complain, but he didn’t because he feared not being asked back to the program next year.

Many of the Idaho workers who Meierotto and Castellano interviewed said the same thing as Santos. Idaho workers have an interest in maintaining a positive status with their employers because they can be specifically asked to return to the U.S. the following year, Meierotto said.

“The very structure of the program where you can be invited back by your same employer is super-problematic, because that creates a fear for someone to speak up,” Meierotto said. “If the worker’s primary motivation is economic, and they land the job here, it’s a real challenge to actually speak up.”

Judge sides with Republican AGs

To crack down on offenses like those in Payette, the Department of Labor implemented new rules in June that aim to prevent exploitation and abuse of guest workers. (Produce Partners Inc., which owns Ontario Partners, did not respond to an interview request for this story.)

The rules expanded protections from employer retaliation for workers who ask for better working conditions. They also allow workers to appoint a representative to join them in conversations with their employers related to work and to invite them into their employer-provided housing units, and they require employers to provide seat belts in any vehicles that workers operate on the job. The rules took effect June 28.

But, nearly a month before the Idaho onion packing plant was penalized — and two weeks after six guest workers died in a car crash while driving a work van elsewhere in Idaho — Labrador signed onto a lawsuit, along with 16 other Republican attorneys general, to block the new rules.

The suit argued that the rules give guest workers rights that American workers don’t enjoy, saying that “hundreds of thousands of nonimmigrant alien farmworkers would have the right to unionize while millions of American farmworkers do not.”

Farmworkers are exempt from the National Labor Relations Act, which grants workers the right to collectively bargain without retaliation. Fourteen states, including Oregon and Washington, have granted farmworkers the right to collective bargaining without retaliation. Each state has a different approach to collective bargaining rights for farmworkers and may define what types of workers qualify and what their roles are differently.

The Department of Labor argued that the new rules will improve conditions for all farmworkers, not just guest workers, and that the rules don’t explicitly give workers the right to unionize, but simply protect them from retaliation if they seek to join or assist a labor organization. No employer would be required to recognize a union.

Local Idaho farmers and contractors opposed the rules, saying the new regulations would be tough for small farms that employ guest workers to keep up with during a busy harvest and production season.

Joel Anderson, executive director of the Snake River Farmers Association, in Heyburn, Idaho, which helps farmers navigate the guest worker program, described the new rules as “a labor organization’s perfectly exhaustive Christmas wish list.”

“The risk of a single failure to comply with a required increased wage rate from one day to the next portends tremendous … fines, the payment of back wages, and irreparable damage to a company’s brand caused by media coverage in an environment dogmatically driven by sustainable sourcing and ethical employment practices,” he wrote in a letter to the department opposing the rules. “A flippant headline alleging ‘human trafficking’ or the underpayment of wages (regardless of the amount and irrespective of whether such an allegation is ultimately proven true) can be the literal death knell for any producer, small or large.”

But worker advocates say the rules are necessary to protect vulnerable employees.

"It’s just unfortunate that, in a state where agriculture is the life and bloodstream, that we’re not able to enforce these basic protections for workers."

“These rules are needed because we have seen a wide variety of abuses throughout the H-2A program,” said Areli Arteaga, political and legislative director for United Farm Workers, who is based in Idaho. “And I can tell you that no state is immune to it.”

A federal judge in Georgia sided with the attorneys general in August, effectively banning the rules from taking effect in Idaho and the 16 other states that sued.

Everywhere else, the rules are still in effect.

‘We’re going to continue fighting’

On May 18, six guest workers employed by the agricultural construction company Signet Farm Services were driving a work van on U.S. Highway 20 in Idaho Falls when a pickup crossed into oncoming traffic and hit them. There were 15 workers in the van, including the driver.

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Six died, according to Idaho State Police, and nine others were injured.

The van belonged to Signet, which did not respond to InvestigateWest’s inquiries about seat belts in the van. Idaho State Police did not respond to multiple requests for comment asking whether the van had seatbelts and if those seatbelts would have helped save any lives.

Even so, Arteaga can’t help but think of the crash as something the new labor rules, which require all company vehicles driven by guest workers to be equipped with working seat belts, could prevent in the future.

“The concern is that the lives that we’ve lost just this year will continue happening,” Arteaga said. “And some of these systemic issues of wage theft, human trafficking and labor exploitation would continue in some of the states that honestly need it the most.”

The workers, who were from Mexico, all died thousands of miles away from their families and homes.

“It’s just unfortunate that, in a state where agriculture is the life and bloodstream, that we’re not able to enforce these basic protections for workers,” Arteaga said. “We’re going to continue fighting because workers do deserve to be respected in the workplace, regardless of if they’ve been here for 30 years working in agriculture or come on a temporary visa.”

InvestigateWest is an independent news nonprofit dedicated to investigative journalism in the Pacific Northwest. A Report for America corps member, reporter Rachel Spacek can be reached at rachel@invw.org.

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