By Simon Davis-Cohen - Truthout, December 18, 2017
Immigration arrests have surged (up 43 percent) under Trump, but deportations have dropped. That means detentions are on the rise. Meanwhile, a creeping labor shortage is reaching fever pitch as US Immigration and Customs Enforcement (ICE) continues its crackdown on employers.
Catalyzed by the agricultural labor shortage -- which has been years in the making, thanks to low wages, new requirements that employers comply with E-Verify immigration reforms and the crackdown on non-citizens in general -- a significant immigration reform that could reshape the labor market is now being pushed in Congress. The bill, which is currently awaiting action after it was passed by the House Judiciary Committee in late October, proposes a massive overhaul and expansion of the federal government's decades-old H-2A agricultural visa program. Critics say that if passed, the reform could lead to millions of virtually indentured workers.
Under the current H-2A program, which itself has produced conditions akin to modern-day slavery, employers pay for foreign workers to be transported to their farms and then send them back home (often to Mexico) once the job -- such as seasonal berry-picking -- is done.
This legal migration route -- used by Trump at Mar-a-Lago -- has exploded under his administration. The American Farm Bureau Federation, a top agriculture lobby, calculates that the number of H-2A workers for berry and apple farms spiked 43 and 30 percent respectively in 2017, compared to 2016.
A massive expansion of the program is now on the table. The proposed reform, known as the Agricultural Guestworker Act (H.R. 4092), represents a worrying coming-together of ethno-nationalist interests who advocate "legal" migration, and corporate interests eager for cheap, guaranteed labor. Non-citizens and guest workers are not the only ones who would suffer under the new program; US workers, whose wages would be massively undercut by the expansion, would also lose out.
The bill, as it passed the US House Judiciary Committee on October 25, 2017, would replace the H-2A program with an "H-2C" program that expands the program beyond agricultural work to industries like meat and poultry processing, forestry and logging, and fish farming. It would also gut what few protections and guarantees workers currently enjoy under the H-2A program. Farmworkers in the United States are already excluded from labor protections, but they can still sue their employers for low wages and workplace violations. The ability for workers to take employers to court would be hampered by the reform, which prohibits workers from bringing "civil actions for damages against their employers." According to Catherine Crowe, an organizer with the Farm Labor Organizing Committee (FLOC) of the AFL-CIO, the bill "makes it even harder for farmworkers to bring claims when their rights are violated." It also forces farmworkers to go through a mandatory mediation process before filing a lawsuit.
This ability to sue is critical for H-2A farmworker organizing efforts. Crowe told Truthout that FLOC uses lawsuits to pressure employers to sign union contracts. In fact, it was through this tactic that FLOC was able to win a contract for H-2A workers with the North Carolina Growers Association, which contracts with about 10,000 workers and 700 growers every year, according to Crowe. This contract won workers significant protections not enjoyed under the H-2A program, including the ability to appeal to an independent labor relations board, protections against retaliation and more job security.
However, North Carolina's Farm Act of 2017, signed by Gov. Roy Cooper in July, cuts off a key tool for worker organizing in the state by making it illegal to settle a lawsuit with a union contract. FLOC, along with Southern Poverty Law Center, the North Carolina Justice Center and others have sued North Carolina, arguing the Farm Act of 2017 violates the First and Fourteenth Amendment rights of more than 100,000 farmworkers. They've also filed a motion to block the implementation of the Act until the lawsuit concludes.
The proposed H-2C program threatens to establish a convoluted form of 21st century legalized indentured servitude. It would do away with H-2A program requirements for employers to provide guest workers with health insurance, housing and transportation to and from their home country, and would allow employers to deduct certain costs and the costs of tools from worker wages. For example, if an employer pays for housing or transportation, they could deduct that from worker wages. Shockingly, the bill also allows employers to deduct a flat 10 percent of workers' wages. Workers would only be able to recoup the deducted wages once they returned to their home country, which Republicans say would "incentivize" them to go home. On top of all this, H-2C would also lower guest worker wages to the minimum wage, well below the current wage set by the Department of Labor that is meant to guarantee that guest workers not undercut US farmworker wages.