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Migrant labor part 3 - frustrating answers
Migrant labor is a necessary - and frustrating - part of Michigan's farm economy. In the last installment of our three-part series, we learn what frustrates farmers most, and seek to find an answer for those frustrations.
Since Michigan Farm News sought answers about the federal Department of Labor's (DOL) so-called Operation Salad Bowl - a national initiative that set out to monitor Michigan agricultural employers' compliance with child labor laws, fair wages and other migrant issues - we've learned about confusing regulations, inspections that seem to focus on minor infractions rather than major issues and inspectors who farmers say have little experience with farming and little empathy with growers.
But among the more striking findings of this inquiry is the fact that most farmers we've contacted, with help from Michigan Farm Bureau's Regulatory Compliance Assistance Program (RCAP), are fearful of retaliation by the DOL if they speak about their problems or publicly criticize the DOL. Others expressed an interest in being identified in this series, if only to expose some of the numerous problems they face, but were later advised by attorneys to keep their mouths shut. Still others said that when they've complained at DOL-sponsored meetings, the very issues they complained about were emphasized in subsequent inspections.
So, in an attempt to bring growers' fears and concerns to light without threat of retaliation, we worked with RCAP over several months to compile some answers from a variety of meetings held with RCAP's Craig Anderson and farm labor attorney Richard VanOrden. The following is a synopsis of questions and conversations from those meetings. While it doesn't cover all concerns, it addresses the most common problems farmers identified in confidence. Some questions were answered by other farmers, and some were answered by Anderson and VanOrden.
Q. Many of my best workers left as soon as the DOL inspectors arrived and never returned. But why did they leave? Was it because they were not eligible to work?
A. (From a Berrien County farmer) No, they're eligible to work in most cases. The workers said they feared the government and didn't want to be around the next time the DOL came. They didn't indicate why they were afraid but workers told me they felt the questioning would not stop until they told the govern-ment something that would put the grower in trouble.
Farmers I talked to felt that if you were picked for inspection by the DOL, you would get a penalty regardless of how good an operation you ran.
Q. I always thought I had to get a license for my housing and I was OK. But now the license doesn't mean a thing. Can the feds give a penalty any time they want?
A. (Anderson) Possibly. Federal law does cover state licensed housing. The federal OSHA standards require that the housing meets the requirements. The reality appears to be that the housing must meet the requirements at all times.
Q. But the state licensed the camp. Why the double coverage?
A. (Anderson) In many cases the problem occurred where there were fewer than five workers in the camp. Under state law, a license is required for camps of five or more. Federal law covers virtually all housing provided to migratory agricultural workers.
We may have been lulled into complacency with a very effective state housing program. Growers need to understand both state and federal rules.
Q. That's the problem. I'm told I've got to do it this way then someone else comes and says I've got to do it another way. Do they know what they're talking about?
A. (VanOrden) It's not that they don't know what they are doing. No. what I mean is they may not have the background of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act (as it relates to Michigan). They are national statutes having variations by the area's production. Some of the provisions have no merit to Michigan situations. Many of the regulations are conflicting.
Q. A farm worker advocate said 'these laws have been here for many years. Why can't you growers get it right?'
A. (VanOrden) The fact the these regulations have been here for many years does not make them easy to understand or to follow. While many regulations appear to be easy to understand, take the question of recruitment under the Migrant and Seasonal Agricultural Worker Protection Act. The bottom line is if someone other than family members recruit for the operation, the farm would lose the family business exemption. It has been believed that this required a person to receive compensation for recruitment activity. This year it appears that a 'gratuitous referral,' where the farmer had no involvement in the action, will eliminate the exemption.
Q. Can a 15 year old son of one of three brothers in a partnership operate a tractor?
A. (from a migrant labor advocate) Of course. Families are exempt. But they shouldn't be as there are many farm children deaths.
Q. This common principle, the family exemption, is up for interpretation. Why is it so difficult?
A. (VanOrden) There is a lack of educational opportunities regarding agricultural labor compliance. Granted, there are few college degree programs or even courses that deal with these issues here or anywhere in the country. The resources are beginning to be amassed in programs such as RCAP, but just getting the information is difficult. It appears to be difficult to find accurate labor compliance information from the traditional sources such as accountants, financial planners, and Extension staff.
Q. After my problems I spent the time, effort, and dollars to get the right information. I feel confident I'm now doing it right. But what happens after the next interpretation?
A.(Anderson) "Dealing with compliance is no different than selecting seed, genetic lines, or any other farm decision. It takes time, money, and sometimes guts. If you don't deal with it, it can get very expensive."
(VanOrden) Indeed. Many operations tell me they simply cannot afford a legal battle over these issues. In fact, many indicated they questioned their ability to change their operations to meet the issues brought up in the previous two Michigan Farm News articles. With the poor crop and price, many producers simply don't have the money to change. But the cost of defense is high if you chose to fight. A case in federal court can run from $5,000 to $25,000 or more depending on the circumstances.
(Grower) I can't afford to fight, so I have to go along and change my operation. But when the issue is one the industry has followed for decades, it puts me at an economic disadvantage. I am in a position that this year I will not hand harvest a single blueberry. I will have to put all but a few of my workers out of a job. Is that why they call it the Department of Labor?
Q. Why does there appear to be selective enforcement of these rules? No industry is free of bad players and agriculture is likely to have a few. The last few years, crew leaders, (commonly called Coyotes) have approached me with a promise of low cost workers, no paper work, no taxes, just one payment, in cash of course, to the crew leader. I will not even talk to him, but my workers say he is finding work for the crew and is not paying them. Why aren't they going after these crooks? Instead they go after us who are making an effort to provide jobs and housing.
A. (Anderson) Enforcement selection appears to be a function of the best information available. The state camp list provides some indication of the size of the operation and location. Crew leaders in Michigan seldom operate licensed housing. The other key areas are past involvement with DOL or complaints. If you have had a visit you are more likely to have another to see if you are continuing to do it right. To the best of our understanding, there is no specific targeting.
Q. But why do I get penalized for the actions of the workers? This is probably the most difficult issue. In many cases the camp occupants have clearly done something that places the camp in violation, such as taking out screens. I spent nearly $400 on new screens and within one week, I had a dozen that needed repair. Why should I be penalized for the workers' action?
A. (VanOrden) Unfortunately, the rules don't provide many penalties for workers. Camp management is essential. It starts with a good disclosure, terms of occupancy, and then a willingness to act immediately on problems. A clear education on the occupants' responsibilities goes a long way to eliminating the problem.
(Anderson) That's good advice. Many problems start out small and build up to an agency complaint. It's a good strategy (and a state rule) to be in the camp at least weekly. You've got to be on top of this.
Q. Michigan has become known for good housing and a willingness to employ families. With families comes the inevitable request for 'different' payment. I like families as I think they are more stable and treat the housing better. But if I don't bend to their request for 'head of the family' pay, they threaten to leave. And when DOL was around the area they did leave.
A. (Anderson and VanOrden) This is a serious issue. Every pair of hands in the field gets a pay check. Period!
Editor's note: Obviously, we've barely scratched the surface of the migrant regulation problem in Michigan, but we hope we've identified some common concerns farmers have when dealing with migrants, migrant law, migrant housing and the federal Department of Labor.
As we reported in the second part of this series, we asked the DOL 10 questions last June. To date, we have received no reply.
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