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January 2021, Volume 27, Number 1

Midwest, Northeast, Northwest

Illinois. Major seed corn firms such as Bayer (Monsanto) and Corteva Agriscience (DuPont Pioneer) use labor contractors to find workers in south Texas to detassel corn for seed. These contractors are responsible for recruiting, housing and supervising migrant workers.

The San Antonio Express in 2006 reported that 70,000 migrants from south Texas work in Midwestern states each year, and that detasseling seed corn generated the most worker complaints.

Local teens wearing long pants and shirts, gloves, and safety glasses have been replaced by adults in seed corn fields. Some farmers are using machines to cut the tassels, with hand crews following the machines to get tassels that the machines missed. Seed companies are also experimenting with corn plants that cannot secrete pollen from their tassels and fertilize the female silks on an ear of corn.

A Florida-based FLC’s H-2A job order in 2018 offered $12.93 per hour or $70 per acre to detassel seed corn fields in central Illinois; the workweek was 36 hours or six six-hour days. Workers were required to detassel at least 0.1 acres per hour or 0.6 acres in a six-hour day. The job order includes the statement: “Employees working under the piece rate system will be required to average not less than the state and federal minimum wage at the end of the first work week.” A 2018 job order from a Texas-based FLC to detassel corn fields in Iowa offered $13.42 an hour and no piece rate wage.

Colorado. The 1922 Colorado River Compact allocates the water from the 1,450-mile long river between seven states, today affecting 40 million people and 5.5 million acres of farm land. Most of the river’s water originates in Colorado’s mountains, and officials there want water to be priced so that more moves from low-value farm commodities to cities.

Hedge-fund Water Asset Management is one of several private investors who are buying water rights from farmers and reselling the water to urban communities. Some want to develop a futures market to set water prices, and allow water prices to fluctuate to reflect water supplies.

Water managers are trying to develop a plan to allocate Colorado River water over the next five years amidst continued drought and population growth. Demand management would pay farmers for the water to which they are entitled and send it to cities willing to pay more. Investors want to accumulate water in wet years in Lakes Mead and Powell and sell the water for a higher price in dry years.

There is general agreement that agriculture, which uses 70 percent of Colorado River water, does not value the water as much as urban areas. The 1922 Compact was signed before western cities had significant populations, and it requires cities to save water before farmers, prompting water investors to buy land with water rights for the water rather than to farm.

California’s agricultural water markets, which were active during the 2015 drought when growers of almonds were willing to pay high prices to keep their trees alive, may serve as a model for buying and selling Colorado River water. Australia has had water markets since 2006, and has found that they are dominated by nonfarm investors who may be able to manipulate prices.

Mississippi. Tackett Fish Farms LLC was ordered to reimburse 38 H-2A employees in November 2020 for the expenses they incurred in traveling to the fish farm. Employers are required to pay all recruitment and travel costs of the H-2A workers they employ.

New York. The 2019 Farm Laborers Fair Labor Practices Act required farm employers to pay overtime wages to farm workers after 60 hours a week. The law also created a state Farm Wage Board to determine whether the overtime threshold should be lowered toward 40 hours a week. The Board in January 2021 agreed with farmers and kept the overtime threshold at 60 hours; worker advocates urged the Board to reduce the overtime threshold to 40 hours a week.

Virginia. Many employers required H-2A workers to interact only with fellow crew members in 2020 to prevent the introduction and spread of Covid. Lipman Family Farms, which paid $0.65 a bucket to tomato pickers on Virginia’s Eastern Shore in 2020, was certified to fill 2,658 jobs with H-2A workers in FY19.

In 2020, Lipman confined H-2A workers to their housing even during non-work hours, provided staple foods free of charge to H-2A workers and allowed selected money transfer agents and food vendors to visit worker housing areas. Some workers complained about the lockdowns, which Lipman and worker advocates agree reduced the incidence of Covid. Several H-2A workers quit their jobs at Lipman and returned to Mexico at their own expense.

Washington. The state Supreme Court ruled 5-4 in November 2020 that the state’s constitution requires dairy workers to receive overtime wages because they work in a hazardous occupation. The ruling applies to other farm workers in the state with hazardous jobs.

Two milkers at DeRuyter Brothers Dairy in Yakima, where 3,000 cows are milked three times a day, argued that the exclusion of farm workers from overtime was racially motivated. Since most farm workers in 1959 were white when the overtime exclusion was enacted, the court relied on a provision of the state constitution that obliges the state to protect workers in dangerous occupations, and found dairying to be dangerous. DeRuyter sold the dairy in spring 2017, but farm groups intervened to argue against changing the overtime exemption.

The court did not address whether other farm workers are covered by overtime and whether dairy employers would have to pay farm workers overtime wages for the past three years, as allowed under state law. If overtime must be paid retroactively, Washington dairy farmers owe an estimated $40 million a year or $120 million for three years of unpaid overtime to their employees.

Larger California farmers are required to pay overtime wages to farm workers after eight hours a day or 40 hours a week by 2022, replacing a state 10-60 overtime law enacted in 1976. Overtime wages were required on a 9-50 basis in 2020, which prompted some employers to say they were accelerating labor-saving mechanization and planting fewer labor-intensive crops. Livestock workers are most likely to be paid overtime wages, followed by equipment operators and irrigators.

Previously, the court ruled that piece-rate workers were entitled to separate pay at their regular rate for rest breaks and time spent on tasks such as meetings and setting up equipment, that is, the employer could not assume that the employee was earning more than the state’s $13.50 an hour minimum wage ($13.69 in 2021) if his piece-rate earnings exceeded the minimum wage for all hours worked.

Washington’s Department of Labor and Industries (L&I) agency performed almost 400 inspections of farms in 2020 and found 130 violations of regulations aimed at protecting farm workers from Covid. Most of the fines levied by L&I were for less than $10,000, and almost all were appealed.

In December 2020, L&I fined Gebbers Farms $2 million for “egregious and willful” violations of state Covid-safety regulations; two of Gebbers’ H-2A workers died in July 2020. The state recommended that employers group workers in pods of 15 or less. Gebbers grouped workers into pods of 42, and said it needed time to reorganize its 4,500 workers into smaller pods.

The state Employment Security Department has long complained that it spent more to administer the H-2A program than it receives in an annual grant from DOL. SB 5438 would have introduced a state H-2A fee on employers to cover ESD costs, but strong opposition from employers led to an eight-member employer and worker committee to study the issue.

Columbia Legal Services sued DOL in December 2020 for approving H-2A job orders to pick cherries and other tree fruits for hourly rather than piece-rate wages. Torres Hernandez said that he could fill five bins of cherries in eight hours, earning $48 a bin or $30 an hour, far more than the $12 an hour guaranteed wage approved by DOL in the job orders filed by employers seeking certification to hire H-2A workers. Most apples, cherries and pears are picked for piece-rate wages that enable most workers to earn $15 to $25 an hour.

Under pressure from employers, ESD removed piece rates from its prevailing wage survey for 2018 before reinstating the 2016 piece rates. The 2019 ESD prevailing wage survey, released in June 2020, allowed “hourly wage guarantees” rather than specific piece rates for harvesting various varieties of cherries.

The state’s 1,260 apple growers are expected to produce 134 million 40-pound boxes of apples in 2020, two-thirds of US fresh apples. The eight major varieties are Gala, Red Delicious, Fuji, Honeycrisp, Granny Smith, Cripps Pink, Golden Delicious and Cosmic Crisp.

Protests by some apple packers in spring 2020 over the lack of PPE led to the formation of Trabajadores Unidos por la Justicia (Workers United for Justice), to advocate for workers employed by Allan Brothers, a Yakima-area apple and cherry packer. Allan and Trabajadores signed an agreement in May 2020 to end the strike, but Trabajadores is not recognized as a union representing Allan employees. Familias Unidas por la Justicia is assisting Allan employees.

The first nest of Asian giant hornets was destroyed near Blaine, Washington in October 2020. The so-called murder hornets, which kill up to 50 people a year in Japan, are up to two-inches long and destroy honeybees.

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