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July 2010, Volume 16, Number 3

H-2A, ICE, RICO

The US Department of Labor largely reinstated the 1987-2008 regulations governing farm employer access to H-2A workers on March 15, 2010, reversing the efforts of the outgoing Bush administration to incorporate some of the employer-friendly changes to the H-2A program in AgJOBS. There are a few changes, including a requirement that farm employers post job vacancies for which they seek certification to hire H-2A workers at USAJobs (www.usajobs.gov). However, a June 2010 review found no crop worker, farm worker, or sheepherder jobs posted.

Gebbers. Gebbers Farms, a 5,000-acre apple and cherry operation north of Wenatchee in Brewster, Washington, had its employment records audited by ICE late in 2009. Gebbers fired 550 workers, and gave the fired workers until April 1, 2010 to vacate company housing. In 2010, Gebbers was approved to hire 1,200 H-2A workers for six months. They began arriving in June 2010 and included 300 Jamaicans; the 2010 AEWR in Washington is $8.87 an hour.

There were predictions that the ICE audit and Gebbers' firings would reduce business and school enrollment in Brewster; this did not happen. The school district reported that enrollment remained steady, and businesses reported that, after a winter 2010 decline, business bounced back to pre-audit levels in summer 2010. La Milpa grocery store owner Esteban Camacho said: "Everything is back to normal. I think most of the people who stayed here wound up working somewhere else. There are a lot of the same people around."

Colorado Sheep. Most of Colorado's 300 sheepherders are H-2A workers from Peru, Bolivia or Mexico. Most earn about $750 a month, and Colorado Legal Services has been campaigning to improve their wages and working conditions. The CLS sued John Peroulis & Sons Sheep Inc in April 2010 on behalf of two Peruvian H-2A sheepherders to recoup recruitment and travel fees and because Peroulis retained their passports. HB 1407, which would have created an 11-member worker advisory council to study the wages and working conditions of Colorado sheepherders, was approved by the Colorado House but defeated in the Senate in May 2010.

Pero. Pero Family Farms of Delray Beach, Florida in May 2010 agreed to establish a $154,000 settlement fund for 140 H-2A workers who said they were not reimbursed for their travel expenses in 2007-08; Pero also agreed to pay Florida Legal Services' Migrant Farmworker Justice Project $88,000. Greg Schell says that Pero, like other Florida H-2A users, relied on advice from a Florida Fruit & Vegetable Association, Florida East Coast Travel Service.

Del Monte. Del Monte Fresh Produce in April 2010 settled a suit filed by the Southern Poverty Law Center on behalf of 63 US and H-2A workers employed in south Georgia between 2003 and 2006. The judge who approved the settlement previously ruled that Del Monte was jointly liable for unpaid wages with the contractors it used to recruit workers (Luna v. Del Monte Fresh Produce Southeast).

Snake River. The Snake River Farmers Association (www.snakeriverfarmers.org) was established in 1985 to provide H-2A workers to member farmers, and today has 570 farm employer members who recruit primarily Mexican workers.

South Carolina Peaches. Titan Farms, which hires about 440 H-2A workers to prune, thin and harvest 3,900 acres of peaches, was profiled in May 2010 (Titan reported three US workers). Titan pays the South Carolina AEWR of $9.11 in 2010 (www.foreignlaborcert.doleta.gov/adverse.cfm) and uses Michael Lalich's Lowcountry Labor and MLT services to recruit Mexican H-2A workers.

South Carolina's Illegal Immigration Reform Act has since 2008 required employers with 100 or more workers to check the legal status of new hires with the federal government's E-Verify system; offenders can be fined up to $1,000 per violation. Smaller employers must use E-Verify after July 1, 2010.

ICE. Migrant advocates have complained about the enforcement activities of the Immigration and Customs Enforcement agency, saying that President Obama has not kept his campaign promise to reduce the fear of ICE in migrant communities. In a June 2008 speech to the National Council of La Raza, Obama said: "When communities are terrorized by ICE immigration raids? the system just isn't working, and we need to change it."

ICE has stepped up its removal of unauthorized foreign criminals, and also seeks to deport unauthorized foreigners it encounters when searching for criminals. ICE removed 197,000 foreigners from the interior of the US in FY05; 349,000 in FY08; 388,000 in FY09; and a projected 400,000 in FY10. Advocates complain that to many "innocent" unauthorized foreigners are caught up in ICE sweeps.

Advocates also complain about ICE audits of the I-9 forms completed by new hires and their employers. Between July 2009 and May 2010, ICE audited 85,000 I-9 forms at 1,655 US employers, and found 14,000 suspected unauthorized foreigners at 655 firms, suggesting that 16 percent of the workers were unauthorized (about five percent of US workers are unauthorized). Pro's Ranch Markets fired 20 percent or 300 of its 1,500 Phoenix-area employees in April 2010 after an ICE audit.

RICO. The federal Racketeer Influenced and Corrupt Organizations Act (RICO) law is being used by some US workers who seek treble damages in class-action suits from employers who allegedly hired unauthorized workers to hold down their wages. When US workers file RICO suits, employers often seek to have them dismissed, arguing that the hiring of a few unauthorized workers does not constitute a criminal conspiracy.

Many RICO suits are settled by employers and their insurance companies that do not want to risk jury trials. In April 2010, Georgia carpet maker Mohawk Industries and Zurich American Insurance Company agreed to pay $18 million to 48,000 current and former employees to end a six-year suit alleging that Mohawk and its temp agencies hired unauthorized workers in order to depress the wages of legal workers.

A class-action suit was certified in May 2009 against SK Foods, the tomato processing firm run by Scott Salyer, who is in prison pending trial on charges involving the sale of substandard tomato products. Legal seasonal workers employed at the SK tomato processing plant in Lemoore, California allege that Salyer and SK executives conspired to hire over 5,000 illegal workers between June 2003 and June 2007.

Similar RICO suits are pending against Fruit Patch, Inc. in California, Evans Fruit in Washington, and Pilgrim's Pride in Texas.

K.C. Mehaffey, "New guest workers fill empty Brewster orchard jobs," Wenatchee, May 31, 2010. Julia Sellers, "Farmers use labor programs to hire migrant workers," Augusta Chronicle, May 16, 2010.


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