Californias new emergency measures to protect workers from COVID-19 infections in the workplace have added more layers of regulations for agricultural employers dependent on the H-2A visa program for guest workers. The regulations put further pressure on the state’s housing crunch and led to an increase in H-2A violations. Farmworker advocates, meanwhile, say the pandemic has exacerbated longstanding labor issues resulting from the program.

We learned fast, and we learned hard,” said Jeanne Malitz, an immigration attorney who has advised agricultural employers in California and Arizona for more than 30 years and has worked on H-2A visas since the program began. Early on in COVID, there were a lot of outbreaks. And we did have some deaths.”

Speaking at a panel discussion for the states Agricultural Labor Relations Board (ALRB) last week, Malitz explained that several factors have emerged in recent years that led to a spike in enrollment for the visa program.

California had about 2,500 H-2A workers in 2010, according to the California Employment Development Department (EDD). By 2015 the number had grown to 10,000. Last year there were about 25,000 H-2A visa holders, working primarily with strawberries, lettuce, tomatoes and vineyards in Monterey, Santa Barbara, Imperial, Ventura and San Luis Obispo counties, the top five counties respectively.

The program is continuing to see a 9% annual increase in the number of workers and rising demand in Fresno and Sonoma counties. Richard Longo, a deputy regional administrator for the U.S. Department of Labor (DOL), noted that one of the biggest issues is a lot of the workforce in Sonoma comes from the Fresno area, traveling significant distances each day due to the lack of affordable housing in the North Coast region.

Malitz said the states growth in the program was spurred by an increase in state I-9 audits in agriculture, forcing employers to terminate their illegal workforce. The E-Verify system for hiring workers became mandatory in some states at the same time. A potential federal mandate that might pass as part of an ag labor bill in Congress could have still more employers turn to H-2A, she said. This coincided with a steady decline in available agricultural workers due to aging out of the workforce or leaving the industry. Longo said that landscaping and construction have been more appealing to farmworkers for the stability of staying in one place and the better pay.

At the same time, increased border enforcement reduced illegal immigration, the traditional source of agricultural labor, said Malitz.

H-2A visa workers come at a higher cost than hiring domestic workers, but employers have increasingly turned to the program because it is legal and reliable.

Jeanne Malitz

Jeanne Malitz, Malitzlaw, Inc.

If they bring back the same workers every year who are the most productive, they work together and they create teams,” said Malitz, adding that many employers have stayed with the program since the early 2000s, despite California’s increasing wage rate.

Washington and Oregon are the only two states with slightly higher wages than California, which pays $16.05 per hour. States in the southeast pay far less, with rates as low as $9 per hour. (For a state-by-state map of rates, click here.)

I'm still surprised, given that Washington, Oregon and California pay so much higher, that we're not stealing all those workers over here,” said Ruben Lugo, a regional DOL H-2A coordinator.

Paying just 30 cents less, California is beginning to catch up with its northern neighbors. Yet higher wages have not drawn more domestic workers to the state. H-2A is also costly, with employers often spending millions on the program. Malitz has found that those who make the investments are the most successful.

A farm labor contractor joined with growers in building a $40 million housing facility in Salinas, Calif., for example.

They didn't even use the H-2A program because the housing was such an incentive for farmworkers that they were able to get domestic employees only, strictly because they had a really great housing facility,” said Malitz.

She also found that the growers who are just pure farmers do this program terribly,” since they focus on getting the crop in the ground and selling it later rather than investing in the professional personnel needed to handle payroll records and other human resources tasks for H-2A.

If you come in with a large group the first time you ever use the program, your fines can be enormous,” said Malitz. It's so complicated that you're guaranteed to make some mistake.”

Lugo found that the most egregious H-2A violators, with the lowest level of compliance, are those just entering the program.

Ruben Lugo

Ruben Lugo, DOL Wage and Hour Investigator

It's rare for us to do an H-2A investigation and not find a violation,” he said. Those H-2A employers that have been in business and have been using the program for years are most likely to be at a higher level of compliance.”

When the pandemic struck, many of the H-2A employers Malitz works with spent all of their profits on hiring more personnel, including safety managers as well as nurses and other medical professionals. Despite the precautions, employers faced difficult situations.

Malitz awoke early one morning to a phone call from the coroners office in Tijuana, Mexico. An H-2A worker in California who tested positive had panicked, broke his quarantine by sneaking out of the employer-provided housing at night, and drove to Mexico in a van with three others. He died of pulmonary heart disease in a Tijuana bus station.

It's a horrifying lesson to be learned,” said Malitz. What could the employer have done differently? Nothing.”

Malitz reached out to Mexican consular offices asking for help with workers who were very scared and could flee home, risking the safety and health of their families and others along the way. 

Another issue with COVID-19 last year was that workers were testing positive for the virus as soon as they arrived in the U.S. Claims for workers’ compensation were rejected because they contracted the virus at home. The employers began a program of testing the workers twice in Mexico — two weeks ahead of the trip and again 72 hours before.

Then we know they don't have COVID when they get here, or at least that's what we're seeing,” said Malitz.

Adding to that, California has had the most restrictive COVID-19 measures in the country, she said. The governing board for the California Division of Occupational Safety and Health, known as Cal/OSHA, approved a set of emergency standards in November to protect workers during the pandemic. A provision requiring six feet of spacing at all times, including for housing, drew heavy opposition from agricultural groups.

It's extremely costly to have to double your housing,” said Malitz.

Cornelio Gomez, who manages foreign labor and farmworker services at EDD, said at least 25 applications are delayed each month as employers scramble to get additional housing to meet the requirements.

Yet Malitz has seen that going the extra distance to keep workers safe has often paid off. One employer she works with had an outbreak last week, with 10 employees who had just arrived testing positive. One had to be hospitalized and was later released but required a feeding tube. Since workers 'comp did not cover the healthcare costs, the employer was not required to hire a nurse for the recovery. But the worker was not well enough to be left unattended or to return to Mexico. Malitz pushed the employer to either hire a nurse or work with a local farmworker clinic.

Almost all of our employers now either have in-house medical personnel or have partnerships with clinics,” said Malitz, adding that many employees decline healthcare under the Affordable Care Act to avoid the pay deduction.

Lugo said that more effort is needed to educate workers on what health clinics are available. 

There are already lots of clinics that target agricultural workers,” he said. “The H-2A workers just are not familiar with the system.”

Lugo shared the story of a worker in Washington state who died in his housing when his medication ran out.

I'm sure there'd be a few workers that would still be alive today, if they would have had access to medical care,” he said.

Cynthia Rice, director of litigation for the labor rights group California Rural Legal Assistance (CLRA), offered substantially different views on the program. She said H-2A is not complicated if employers treat workers with respect; follow state and federal requirements for housing, transportation and pay; and recruit U.S. workers first to fill job openings.

Rice and CLRA have often faced off against Malitz‘s clients in the courtroom, cases that Rice said are just the tip of the iceberg for violations under the program.

We have successfully litigated, or negotiated settlements pre-litigation, or had labor commissioner complaints against most of those farm labor contractors,” said Rice. This is a program that is designed to allow employers who would do so violate the law with not a lot of oversight.”

Rice said that once an employer makes the financial commitment to bring in H-2A workers, it often means giving short shrift to U.S. domestic workers who have had those jobs in the past, or who would be available for those jobs.” She said in the Salinas, Imperial and Central valleys, which have the most H-2A workers in the state, domestic workers are on unemployment while jobs are being posted for H-2A workers. 

The program was designed to fill in the gaps only when U.S. workers were unavailable. According to Malitz, employers were once required to first advertise in newspapers for positions, which was dropped "because nobody ever answered the newspapers."

Rice argued the program is attractive to employers because it offers a captive workforce with complete and total control.” The workers canvote with their feet” by moving to another employer. They come into the country with debt load for the transportation costs that isnt always paid upfront.” COVID-19, she added, has exacerbated these issues.

They're fleeing a country way more hit by COVID than we are and that has been in an economic decline for a long time,” said Rice.

She also raised issues with employers who were allegedly setting limits on visitors in H-2A housing to avoid exposure.

Not only is it where you go to work and when and where you live, it's who can visit you,” she said. That makes our outreach and our access extremely difficult.”

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Despite Californias many worker protection requirements, Rice said most employers use boilerplate contracts that are inconsistent with state law.

There's nothing in 90% of the orders about California overtime,” said Rice. It doesn't include a word about the ALRB.”

She reported seeing overcrowded housing as well, despite the new Cal/OSHA regulations. Rice worried these problems will continue to grow as the state recruits more H-2A workers.

The development of the H-2A program in, say, Florida, North Carolina, Georgia has inched up to get to a point where 90% of workers in sugarcane and tobacco is H-2A only,” she said. And that is the trajectory I'm afraid that California is on.”

Those three states have led the country for the amount of jobs filled with H-2A workers, followed by Washington and California.

The takeaway for employers from both Rice and Malitz was that treating workers well leads to greater workforce retention. This means continual training by Malitz and her colleagues.

We do not file paperwork and walk away, like some visa lawyers in other types of visa programs,” said Malitz. I don't take three hours to train. I don't take eight hours. I take a whole season to train a new H-2A employer.”

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