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January 2010, Volume 16, Number 1

H-2A Regs, Cases

The Department of Labor on November 17, 2009 published an interim rule for employers seeking farm workers before June 1, 2010. In January 2009, the Bush DOL issued rules changing the H-2A program to an attestation system as outlined in AgJOBS; one goal of this streamlining was to increase the employment of H-2A workers and decrease the employment of unauthorized foreigners.

In March 2009, the Obama DOL rescinded the changes, but a federal judge in June 2009 ordered DOL to honor the Bush rules until DOL engaged in a new rulemaking process. DOL on December 7, 2009 announced that it was in the midst of a new rulemaking process and planned to issue new H-2A regulations in February 2010.

DOL justified its decision to rescind Bush-era H-2A rules by noting that H-2A applications fell in 2009, so streamlining did not increase participation in the H-2A program; DOL also found that workers were not protected by attestation. DOL concluded that the 2008 rule's shift in the basis of the Adverse Effect Wage Rate from a USDA survey of employers to a DOL survey of employers lowered wages for farm workers.

Sheepherders. Most H-2A sheepherders sign three-year contracts to care for a flock of 1,000 sheep for $750 a month, a wage that reportedly has not changed for decades. Employers pay airfare to the US and provide H-2A sheepherders with "campitos," mini-trailers that lack running water and bathrooms.

Most H-2A sheepherders are from Peru, Chile and Mexico, and legal services groups say they are abused by employers who keep their passports and discourage visitors. Employers counter than many H-2A sheepherders ask for second or third contracts.

Most employers obtain H-2A sheepherders via the Salt Lake City-based Western Range Association or Casper, Wyoming based-Mountain Plains Agricultural Services.

Eurofresh. Willcox, Arizona-based Eurofresh was certified in February 2008 to employ 530 H-2A workers; 800 US workers were hired to perform the same tasks. DOL investigated Eurofresh, and found that it discriminated against US workers in favor of H-2A workers, including illegally firing 527 US workers and failing to report the terminations as required.

In April 2009, Eurofresh filed for Chapter 11 bankruptcy reorganization. In December 2009, Eurofresh settled DOL charges of discrimination against US workers by paying $937,460 in back wages and interest and a $12,500 fine. The Eurofresh payment is five percent of the $4.9 million in back wages that the US Department of Labor found are owed in back wages? Eurofresh is paying all its unsecured creditors five percent of what it owes under its Chapter 11 reorganization plan.

Other H-2A Cases. A federal retaliation suit by 14 Mexicans who had worked for Shannon Produce Farm in Georgia was allowed to proceed in November 2009; the suit alleges that the workers were not rehired because of their earlier participation in a Fair Labor Standards Act suit. The workers were employed by Shannon between 2000 and 2005, but not in 2006-08. Shannon argued that, since the alleged retaliation of not rehiring occurred outside the US, the workers could not sue. The court noted that it was the location of the workplace, not the workers, that governed the applicability of US law.

Odom Farms in Arkansas settled a suit in December 2009 filed by four H-2A workers who were employed between 2006 and 2008 but not in 2009. The workers charged that Odom did not reimburse their travel expenses and kept their passports; Odom acknowledged keeping the workers' passports, but said the reason was to prevent their theft.

International Personnel Resources of West Chester, Pennsylvania was indicted in December 2009 for "legalizing" unauthorized workers. IPR sent unauthorized workers home and had them obtain H-2B visas so they could return to the US and work legally for landscapers, builders and golf courses.

The Smithsonian organized an exhibition on the Bracero program, which brought between one and two million Mexicans to the US to do farm work between 1942 and 1964.

Sharon Sullivan, "Migrant sheepherders endure loneliness, low wages on Colorado ranches," Grand Junction Free Press, December 25, 2009.

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