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Federal Labor Law Enforcement in Agriculture

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December 18, 2020

The purpose of labor law enforcement is to ensure that the rights of workers are protected and to level the playing field for employers, so that those who underpay workers or engage in other cost-reducing behavior in violation of labor laws do not gain a competitive advantage over law-abiding employers. The US Department of Labor’s Wage and Hour Division (WHD) is the major federal agency that protects the rights of US farm workers and H-2A guest workers.

WHD enforcement data reveal three major trends. First, violations of H-2A regulations have become the major source of back wages owed to farm workers and dominate the civil money penalty (CMP) assessments that are levied for labor law violations in agriculture. In FY2000, violations of the Migrant and Seasonal Worker Protection Act led to $1 million in back wages and CMPs, compared with $100,000 for H-2A violations. In FY19, violations of MSPA led to $4 million in back wages and CMPs, compared with $5 million for H-2A violations.

Second, farm labor contractors (FLCs) account for a disproportionately high share of labor law violations. FLCs employ a seventh of US farm workers, but account for a quarter of all agricultural labor law violations. FLCs are expanding their share of farm worker employment and their share of H-2A guest worker employment, suggesting more farm labor law violations.

Third, within a particular commodity or NAICS code, the five percent of investigations that find the most violations account for 50 to 75 percent of all violations in that commodity. For example, the five percent of US crop farms with the most violations accounted for two-thirds of all violations found on all US crop farms. A similar five-percent of worst violators accounted for two thirds of all violations among FLCs. Inducing compliance among bad apples, or putting them out of business, could decrease the total number of violations by two thirds or more.

Enforcement FY00-FY19

WHD conducted over 31,000 investigations in US agriculture between FY00 and FY19, ordered $66 million to be paid in back wages to 154,000 farmworkers, and assessed $56 million in civil money penalties for labor law violations. The number of WHD agricultural investigations fell from over 2,000 a year in the early 2000s to 1,100 a year or about 100 a month recently.

WHD investigators normally work in teams of two and conduct five to 10 investigations during two-weeks stints visiting farms.

The number of farm workers who were owed back wages peaked at 12,000 in FY14, By contrast, some 9,000 workers were found to be owed back wages in FY19. The amount of back wages owed peaked at $7.7 million in FY13, the same year that CMPs peaked at $7.3 million. Back wages and CMPs were between $4 million and $7 million a year over the past five years.

Back Wages owed to Farm Workers and CMPs peaked in FY13


Source: https://www.dol.gov/agencies/whd/data/charts/agriculture

WHD enforces two major farm labor laws: the Migrant and Seasonal Worker Protection Act and regulations governing the H-2A guest worker program. About 45 percent of WHD agricultural investigations over the past two decades found violations of MSPA. The number of MSPA violations peaked in FY14, and has since declined by more than half.

However, back wages owed to farm workers, and CMPs assessed for MSPA violations, peaked in nominal dollars in FY19. A seventh of all back wages and CMPs assessed over the past two decades for MSPA violations were found in FY19, when the average back wage owed per employee was $572, three times the average $166 owed over the past two decades.

MSPA Violations Peaked in FY14, but Back Wages and CMPs for MSPA Violations peaked in FY19

MSPA Violations Peaked in FY14, but Back Wages and CMPs for MSPA Violations peaked in FY19
Fiscal Year Cases with Violations Share of Violations Total Violations Average Violations per Case Employees owed Back Wages Back Wage Amount Average Back Wages per Employee Civil Monetary Penalties Assessed
2000 853 6% 4,422 5 1,114 $104,903 $94 $870,421
2001 941 7% 10,745 11 6,356 $368,132 $58 $733,537
2002 948 7% 5,994 6 1,835 $387,659 $211 $783,400
2003 740 5% 6,008 8 1,994 $266,325 $134 $600,071
2004 794 6% 4,295 5 1,129 $272,540 $241 $946,102
2005 616 4% 3,430 6 1,330 $98,460 $74 $588,631
2006 615 4% 3,105 5 1,007 $152,332 $151 $610,890
2007 812 6% 5,350 7 1,497 $179,565 $120 $1,181,543
2008 747 5% 5,275 7 2,557 $308,924 $121 $764,301
2009 636 5% 4,979 8 2,061 $326,548 $158 $804,288
2010 626 4% 4,876 8 1,883 $323,135 $172 $648,311
2011 654 5% 5,578 9 2,558 $404,962 $158 $885,448
2012 767 5% 7,129 9 3,688 $754,592 $205 $1,036,650
2013 822 6% 8,255 10 4,336 $636,514 $147 $902,628
2014 756 5% 10,745 14 6,213 $742,537 $120 $951,669
2015 707 5% 7,802 11 3,569 $644,188 $180 $838,747
2016 608 4% 7,696 13 3,792 $680,185 $179 $968,444
2017 548 4% 3,876 7 1,274 $249,645 $196 $1,613,028
2018 492 3% 4,905 10 2,314 $562,797 $243 $2,751,533
2019 412 3% 4,580 11 2,253 $1,288,790 $572 $2,875,374
Total 14,094 100% 119,045 8 52,760 $8,752,732 $166 $21,355,015
Source: https://www.dol.gov/agencies/whd/data/charts/agriculture

Some 11 percent of WHD agricultural investigations found violations of H-2A regulations. The H-2A program doubled in size over the past six years, and the number of violations rose to 12,000 in FY19, when almost 5,000 H-2A and US workers were owed back wages for violations of H-2A regulations. Back wages owed to workers for H-2A violations peaked at $4.4 million in FY13, when CMPs for H-2A violations were almost $6 million. Over 200,000 H-2A workers fill 10 percent of the jobs on US crop farms, and H-2A violations are likely to rise as the number of H-2A guest workers increases.

H-2A Violations Peaked in FY19, but Back Wages and CMPs for H-2A Violations peaked in FY13

H-2A Violations Peaked in FY19, but Back Wages and CMPs for H-2A Violations peaked in FY13
Fiscal Year Case with Violations Share of Violations Total Violations under H-2A Average Violations per Case Employees Receiving Back Wages Back Wages Average Back Wages per Employee Civil Monetary Penalties Assessed
2000 68 1% 1,100 16 307 $91,915 $299 $136,620
2001 102 9% 9,739 95 1,185 $466,293 $393 $258,540
2002 121 3% 3,606 30 1,043 $203,347 $195 $173,385
2003 76 3% 3,440 45 937 $360,788 $385 $311,025
2004 79 2% 1,910 24 560 $139,367 $249 $178,350
2005 73 2% 2,415 33 947 $363,032 $383 $285,900
2006 86 1% 1,084 13 265 $218,421 $824 $57,900
2007 95 3% 3,270 34 1,826 $440,085 $241 $77,413
2008 114 3% 3,314 29 1,064 $640,472 $602 $440,508
2009 117 4% 4,152 35 1,487 $400,765 $270 $309,338
2010 100 3% 3,730 37 954 $371,221 $389 $357,080
2011 170 5% 5,987 35 1,548 $813,374 $525 $780,755
2012 216 9% 10,214 47 3,228 $1,805,327 $559 $3,267,239
2013 232 10% 11,171 48 4,440 $4,448,005 $1,002 $5,972,230
2014 173 6% 6,954 40 2,971 $1,379,230 $464 $1,768,000
2015 207 7% 7,935 38 2,496 $1,605,360 $643 $3,921,187
2016 235 5% 6,079 26 3,572 $1,451,579 $406 $2,223,114
2017 330 6% 7,314 22 3,717 $2,378,157 $640 $2,246,527
2018 318 7% 8,438 27 4,328 $1,971,674 $456 $3,064,224
2019 431 11% 11,984 28 4,994 $2,419,766 $485 $2,836,552
Total 3,343 100% 113,836 34 41,869 $21,968,177 $525 $28,665,885
Source: https://www.dol.gov/agencies/whd/data/charts/agriculture

Detailed Data: FY05-19

Detailed data from 17,000 agricultural establishments that were the subject of 20,260 investigations between FY05 and FY19 found 292,400 violations of the three major federal farm labor laws, the Fair Labor Standards Act (24 percent of all violations), MSPA (30 percent), and H-2A program rules (32 percent). About 30 percent of the employers who were investigated had no violations and 31 percent had five or more violations. The employers with five or more violations accounted for two-thirds of all labor law violations found.

Almost 30 percent of investigations found no violations, and 31 percent had 5 or more


Data include violations of H-2A, MSPA, FLSA, and other labor laws enforced by WHD
Source: https://enforcedata.dol.gov/views/data_catalogs.php

Farm labor contractors (FLCs) play a special role in farm labor markets, earning revenue by finding workers for employers and jobs for workers. The Quarterly Census of Employment and Wages (QCEW) reports the average employment of FLCs who enroll their workers in the unemployment insurance systems that are operated by states, which means that QCEW coverage of FLC employment varies by state. Almost all workers employed in agriculture are included in QCEW data for California and Washington, but H-2A guest workers and US workers employed by smaller FLCs and on smaller farms are excluded from the QCEW in Florida, Georgia, and other southern states.

FLCs are becoming more important as farmers outsource labor-intensive tasks to crop support service firms (NAICS 1151), defined as nonfarm employers who bring workers to farms to plant and harvest crops. Across the US, FLCs account for over half of the employment in crop support services. FLCs accounted for 14 percent of average employment in US agriculture in 2019 and 25 percent of all labor law violations found between FY05 and FY19.

Among FLCs, a relative handful of “bad apples” account for a high share of violations. The 10 US FLCs with the most violations were a miniscule share of the 4,800 FLCs investigated, some several times, but they accounted for a sixth of all labor law violations found at FLCs and 10 percent of all back wages owed by FLCs.

The 10 US FLCs with the most labor law violations accounted for a sixth of all FLC violations

The 10 US FLCs with the most labor law violations accounted for a sixth of all FLC violations
Employer Number of Investigations Number of Violations Share of FLC Violations Total Back Wages Owed Share of FLC Back Wages Owed Total CMPs Assessed Share of FLC CMPs Assessed
Urenda's Farm and Forest Contractors 2 1,645 2.5% $0 0.0% $2,500 0.0%
Global Horizons Inc. 6 1,625 2.5% $132,885 2.1% $0 0.0%
T Bell Detasseling LLC 1 1,413 2.2% $0 0.0% $0 0.0%
Escamilla & Sons, Inc. 1 1,140 1.8% $160,878 2.6% $39,850 0.3%
Overlook Harvesting Company 3 807 1.2% $96,819 1.5% $1,000 0.0%
M & L Contractors, LLC 2 799 1.2% $16,189 0.3% $4,550 0.0%
Cal West Farm Management 2 776 1.2% $50,197 0.8% $2,650 0.0%
Sunshine Agricultural Services 2 674 1.0% $58,689 0.9% $1,600 0.0%
EAM Harvesting Inc 1 662 1.0% $38,101 0.6% $4,860 0.0%
Vasquez Citrus & Hauling, Inc. 1 568 0.9% $52,334 0.8% $4,500 0.0%
Top 10 21 10,109 15.5% $606,091 9.7% $61,510 0.5%
Total US FLCs 4,771 63,642 100% $6,269,464 100% $12,275,066 100%
Source: https://enforcedata.dol.gov/views/data_catalogs.php

The bad apple problem is more pronounced in California, where 22 investigations of the 10 FLCs with the most violations detected 28 percent of all violations committed by the state’s FLCs. These top 10 California FLC violators accounted for 22 percent of the back wages owed to farm workers.

The 10 California FLCs with the most labor law violations accounted for 28 percent of all FLC violations in the state

The 10 California FLCs with the most labor law violations accounted for 28 percent of all FLC violations in the state
Employer Number of Investigations Number of Violations Share of FLC Violations Total Back Wages Owed Share of FLC Back Wages Owed Total CMPs Assessed Share of FLC CMPs Assessed
Cal West Farm Management, Inc. 2 776 4.2% $50,197 2.9% $2,650 0.1%
Global Horizons Inc. 3 679 3.7% $132,885 7.8% $0 0.0%
Sunshine Agricultural Services 2 674 3.7% $58,689 3.4% $1,600 0.0%
Benito Veliz Carrillo dba: E C Labor 2 550 3.0% $9,045 0.5% $3,000 0.1%
Cruzberto Barajas-Angel 1 540 2.9% $17,214 1.0% $2,550 0.1%
Esparza Enterprises, Inc 8 494 2.7% $38,222 2.2% $9,111 0.3%
Juan Luis Ayala Lopez-FLC 1 409 2.2% $20,905 1.2% $4,200 0.1%
LLamas Ag, Inc. 1 391 2.1% $23,484 1.4% $2,975 0.1%
Nextcrop 1 384 2.1% $13,313 0.8% $19,525 0.6%
Cruz Lopez, Domingo Eustacio FLC 1 327 1.8% $7,408 0.4% $1,600 0.0%
Top 10 FLCs 22 5,224 28.4% $371,363 21.7% $47,211 1.4%
Total CA FLCs 836 18,382 100% $1,712,569 100% $3,397,538 100%
Source: https://enforcedata.dol.gov/views/data_catalogs.php

The bad apple issue is also apparent when employers are ranked by their share of all violations found in a particular commodity or NAICS code. The five percent of US crop farms with the most violations of federal labor laws between FY05 and FY19 accounted for two-thirds of all the violations of federal labor laws detected on US crop farms. A similar bad apple story applies to US FLCs, where the five percent with the most violations accounted for two thirds of all violations found among US FLCs.

The 5% of US crop farms with the most labor law violations accounted for two thirds of all violations found on US crop farms (FY05-FY19)


Source: https://www.dol.gov/agencies/whd/data/charts/agriculture

WHD investigators record the commodity of the employers who are investigated. A comparison of the share of violations with the share of QCEW employment in a NAICS code or commodity shows that commodities with H-2A workers have much higher shares of violations than their shares of employment. There are two explanations. First, H-2A employers often violate H-2A regulations and other labor laws. Second, in states where H-2A workers are excluded from unemployment insurance, QCEW employment is lower than actual employment in that commodity.

Both factors are at work in the two NAICS codes with the highest ratios of violation share to employment share. The share of agricultural violations found in NAICS 1124, sheep and goats, is eight times the sheep and goat share of QCEW employment in agriculture. Many sheep and goat farms rely on H-2A workers from Peru and other countries to tend their sheep, often on public lands in the western states. Two associations, Mountain Plains Agricultural Services and the Western Range Association, handle recruitment and paperwork for their member farmers, most of whom employ fewer than five H-2A sheepherders, each of whom is usually provided with a mobile trailer and a dog to tend a flock of 1,000 sheep.

Other NAICS categories with far higher shares of violations than their shares of employment include 1132, Forest Nurseries and Gathering of Forest Products, and 1153, Support Activities for Forestry. Many of the H-2A workers in forestry are employed in reforestation activities, such as planting seedlings for piece-rate wages.

The share of violations and the share of employment varies by commodity or NAICS code

The share of violations and the share of employment varies by commodity or NAICS code
NAICS Code Violations (FY05-FY19) Share of Violations Average QCEW Employ 2019 Share of Employ Ratio: violations/employment
1111 Grain Crops 3,572 1.3% 54,657 4.3% 31%
1112 Veg and Melon Crops 40,046 14.9% 89,582 7.1% 210%
1113 Fruit and Nut Crops 54,465 20.2% 176,405 14.0% 145%
1114 Nursery Crops 15,094 5.6% 161,272 12.8% 44%
1119 Other Crops 23,713 8.8% 64,634 5.1% 172%
1121 Cattle & Dairy 1,954 0.7% 159,234 12.6% 6%
1122 Hogs and Pigs 948 0.4% 31,004 2.5% 14%
1123 Poultry and Eggs 27,361 10.2% 45,994 3.6% 279%
1124 Sheep and Goats 2,540 0.9% 1,522 0.1% 784%
1125 Aquaculture 1,165 0.4% 7,071 0.6% 77%
1129 Other Animal 2,464 0.9% 20,259 1.6% 57%
1131 Timber Tract 1,077 0.4% 2,967 0.2% 170%
1132 Forest Nursery 1,870 0.7% 2,052 0.2% 428%
1133 Logging 2,522 0.9% 48,257 3.8% 25%
1141 Fishing 311 0.1% 6,665 0.5% 22%
1142 Hunting and Trapping 146 0.1% 1,908 0.2% 36%
1151 Crop Support 80,169 29.8% 342,323 27.1% 110%
1152 Animal Support 924 0.3% 30,622 2.4% 14%
1153 Forestry Support 8,796 3.3% 17,277 1.4% 239%
Total Violations/Employment 269,137 100.0% 1,263,705 100.0% 100%
115115 Farm Labor Contactors 65,135 24.2% 181,322 14.3% 169%
Sources: WHD enforcement database and QCEW

Peruvian H-2A sheepherder


Source: https://www.npr.org/2013/06/12/189528370/immigration-bill-may-keep-wage-exemption-for-foreign-herders

This blog draws from a longer report:

Costa, Daniel, Philip Martin, and Zachariah Rutledge. 2020. Federal labor law enforcement in agriculture. EPI. https://www.epi.org/.


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