Federal movement to reform H-2A visa program as many call for changes to seasonal labor regulations
With proposals to modernize the H-2A seasonal visa program, state labor unions, legal experts and a southern Minnesota local orchard speak to how federal and state labor regulations play out in Minnesota.
ROCHESTER — With an estimated 47 million Americans quitting their jobs in 2021, legislators have called for an increased employment of foreign workers to remedy the shortage.
In turn, activists, Republican and Democratic politicians, and farmers alike see reforming the seasonal visa system as a necessary first step before bringing more international workers into the country.
“It’s a churn and burn workforce,” said Pommella Wegmann, the president of the AFL-CIO’s Southeast Minnesota Area Labor Council, which represents over 40,000 union members from construction workers to nurses.
The labor council, according to Wegmann, fights for good wages, benefits and workplace safety for all workers, including seasonal visa workers and immigrants.
Wegmann believes that the business model for hiring foreign labor on H-2 seasonal visas creates unbalanced power dynamics between workers and employers where workers don’t have the freedom to stand up for themselves.
Since 2021, two southern Minnesota farms and landscaping companies have been disbarred from hiring foreign labor on account of violating wage and hour regulations.
“The whole business model was to exploit workers and pay as little as possible, offer zero benefits, not provide any training, have dangerous working conditions,” Wegmann said. “And in the next year, start all over again.”
Make them pay
As of 2019, Minnesota has one of the tightest wage theft laws in the country. However, accounts of employers withholding seasonal worker’s due pay continue to emerge.
The most recent of which involves Solem Concessions, which was ordered to pay over $200,000 in back pay and fines for violating H-2B seasonal visa regulations.
The Minnesota Department of Labor and Industry estimates that overall more than 39,000 workers are owed about $12 million in stolen wages, from which immigrant and minority populations are particularly vulnerable.
Research from the Census Bureau’s Current Population Survey collected between 2009 and 2019 showed that immigrant and Latino workers were twice as likely to earn less than minimum wage than white workers.
Wegmann, a Zumbrota, Minnesota, resident, said the labor council used to rely on word of mouth to learn of wage theft cases, but within the past two years, an electronic search created by the DOL and the United States Citizenship and Immigration Services has proved transparent and helpful in tracking companies applying for H-2 workers.
“That has been very helpful, however, there’s still a lot of enforcement that needs to take place,” Wegmann said.
According to Wegmann, while many southern Minnesota farms utilize the H-2A programs, the enforcement of regulations for foreign labor largely operates on an “honors system.”
Not all farms using these programs have abused the program, however.
Treating laborers well
Wescott Orchards near Elgin, Minnesota, employs workers on an H-2A visa and has spoken about how the orchard abides by DOL regulations in place around working conditions and wages.
Brian Ruhoff, chief financial officer for Wescott Orchards, said that to ensure the farm abides by labor regulations, the department of labor has come by the farm, usually in the span of one to two days, to look over housing and work conditions and interviewed workers.
“There’s a number of regulations that we have to follow from transportation to housing to wages,” Ruhoff said.
With a higher demand for foreign labor, national politicians have called for the modernization of the H-2A program written into law with the Immigration and Nationality Act.
The proposed Farm Workforce Modernization Act would amend the H-2A visa program to with give employers flexibility and worker’s stronger protections. While the bill cleared the House in 2021, it still sits in a negotiations process in the Senate despite gaining bipartisan support in the House.
If passed, this bill could have a large impact on Minnesota’s economy and farms that employ H-2A visa workers. the state’s foreign-born labor force has grown 23% since 2010, according to Minnesota’s Department of Employment and Economic Development.
The Agricultural Worker Project, a practice unit of the Southern Minnesota Regional Legal Services, assists agricultural workers with employment issues and aims to improve living and working conditions for these workers across Minnesota and North Dakota.
A watchful eye
The AWP receives federal funding by the Legal Services Corporation and often works alongside different government agencies in their work. Across the topic of H-2A labor regulations, responsibilities are spread across federal and state government agencies.
Communications staff for the Minnesota Department of Labor and Industry clarified in an email that although Minnesota Occupational Safety and Health Administration Compliance falls within their agency, it does not have enforcement authority over agricultural employers with less than ten employees, migrant camps or labor housing.
They also mentioned DEED inspects some H-2A workers' housing. This responsibility is also shared with other agencies and organizations.
The DLI has a labor standards unit can enforce wage and payment laws, such as Minnesota State overtime laws, but according to communications personnel from the Labor Standards Unit, Minnesota-state labor standards can apply to foreign workers but are not solely designed for foreign workers.
For the H-2A program, the DOL Wage and Hour Division has jurisdiction to look into employment violations, and according to division chief Tanya Andrade, AWP works with that department by helping agricultural workers file complaints to the DOL.
“The cases are kind of divided up between the U.S. Department of Labor and DLI, or the Department of Labor and Industry, and our office,” Andrade said. “So we might submit a complaint to the Department of Labor and then assist the worker to recover any state remedies.”
Outside of that, AWP has worked with the FBI in cases of human trafficking.
“(The FBI) have come in very handy in terms of helping our clients out, or victims of trafficking, and getting whatever remedies and benefits that they're entitled to,” Andrade said. “In general, it’s (trafficking) is more prevalent than we know.”
The AWP’s Project Manager and Outreach Coordinator Elise Riveness said though less common, their unit will work alongside the Minnesota Department of Human Rights, Department of Agriculture and the U.S. Equal Employment Opportunity Commission.
Riveness also said the State Workforce Agency, which is implemented in every state that uses the H-2A program, will review H-2A applications for compliance with federal, state and local regulations to hire foreign workers and perform housing inspections.
Andrade said that while the AWP is a neutral unit that cannot advocate for policy changes, laws in general can always be improved to better protect farm workers.
“There’s efforts all over the country for improvement of those laws,” Andrade said.
Between advocates, legal experts, government agencies and national politicians, people seem to be moving in favor of updates to the H-2A program.
On March 19, 2021, Minnesota Gov. Tim Walz established its Committee on the Safety, Health, and Wellbeing of Agricultural and Food Processing Workers after the pandemic exacerbated attention to workplace safety issues for these workers.
This committee consists of staff from the health department, the DLI, local unions, the Minnesota Farm Bureau and other agricultural organizations, and staff from the AWP.
At the beginning of the year, this committee released 13 recommendations to improve agricultural and food processing workers’ health, safety and well-being, which center around four main areas of priority: coordination/communication, housing, workplace safety and fair labor standards.
A committee press release said it plans to continue uncovering “the challenging regulatory landscapes” that impact housing and safety for agricultural and food processing workers.
Wegmann along with Southeast Minnesota Area Labor Council wrote a letter to the city of Rochester calling for more resources towards investigating wage theft and collaborating with the DOL and DLI on wage complaints and ensuring wage compliance.
“This issue is especially important to our Labor Council in southern Minnesota because of the prevalence of temporary worker abuses whether H-2A or H-2B,” Wegmann said. “Obviously, agriculture is one of the biggest parts of the southern Minnesota economy.”