E-Verify, Employers & Employment, H-2A, Law Enforcement, Legislation

Growers Say E-Verify Will Destroy the Modern Ag Industry, But Congress Has Yet to Offer a Fix

From MontereyCountyWeekly.com, Sara Rubin, 3 Nov 2011.

Far Afield: With nearly 300,000 companies voluntarily using E-Verify, fewer than 2 percent of their new hires have gone unconfirmed by the system. But Salinas Valley growers worry lettuce crews, like this one in Gonzales, would dissolve with mandated I.D. checks against immigration records. Photo by Nic Coury.

Far Afield: With nearly 300,000 companies voluntarily using E-Verify, fewer than 2 percent of their new hires have gone unconfirmed by the system. But Salinas Valley growers worry lettuce crews, like this one in Gonzales, would dissolve with mandated I.D. checks against immigration records. Photo by Nic Coury.

Field Maneuvers

With quick strokes of the blade, workers cut romaine heads from a Gonzales field on a brisk October morning. They precisely shave off the greenest exterior leaves and pass the crisp romaine hearts to an apron-clad bagger, who methodically sprays each handful of three with chlorinated water, then slides them into a retail pack. She tosses each full bag up to a platform, where a worker seals it and packs it into a carton. He hands off the full boxes to another man who loads a truck bound for a cooler, from which the lettuce will ship to grocers across the country.

Of this crew of 18 workers, 12 are probably undocumented immigrants.

From this lettuce field, the political throes of Washington might seem remote. But if the stalled federal immigration reform debate creeps forward – and it seems to be sputtering on, even in a gridlocked Congress – Monterey County’s $4 billion agricultural industry fears it could be plowed under.

The nation’s most abundant salad-growing region plants and picks its labor-intensive signature crops with a workforce the industry acknowledges is mostly illegal.

Some 45,000 agricultural workers in Monterey County comprise more than a quarter of the local workforce, and industry groups estimate as much as 70 percent of them are undocumented. (That’s not far above the national average: Official figures from the U.S. Department of Labor have steadily risen from 37 percent of farm workers in 1995 to 55 percent in 2000.)

It’s commonly known but taboo to speak: False documents routinely pass as legitimate. Growers and contractors check a new hire’s Social Security card or driver’s license, but unless they’re overt fakes, the docs usually pass muster. Theirs is an easy excuse when it comes to immigration enforcement: They’re not forensic document experts.

As the law stands, U.S. Immigration and Customs Enforcement doesn’t target Salinas Valley growers for precisely that reason. “The fact that a business has an unauthorized worker on the payroll doesn’t mean they knew or should’ve known,” says ICE spokesperson Virginia Kice. “They may have been duped.”

Accountability only comes into play when workers file taxes, often months later. It’s then that Salinas Valley growers frequently find themselves blanketed with letters from the federal Social Security Administration, notifying them of “no-matches” between employee names and Social Security numbers on tax returns. This year, Social Security sent more than 700,000 such letters to employers nationwide. But budget cuts ended the practice in August of this year.

The majority of no-matches are easily resolved, attributed to name changes due to marriage or divorce, according to Social Security spokesman Lowell Kepke. Besides, he says, Social Security’s not in the business of immigration enforcement; its mission is to assign earnings to earners. That leaves today’s slow, paper-based system with no accompanying enforcement edge.

E-Verify would change that, bringing unresolved no-matches to the front of the hiring process and shortening the document check system to mere seconds. When processing a new hire’s I-9, or Employment Eligibility Verification form, employers enter a citizen’s Social Security or an immigrant’s alien number into the electronic database that syncs with some 60 million immigration and 144 million Social Security records.

That means erroneous documents, no matter how convincing, won’t cut it if the feds mandate E-Verify, which is now voluntary for private employers.

Only about 4 percent of wage earners are left with unresolved Social Security mismatches every year – what Kepke calls “the hardcore” – and about 1 in 6 of those are agricultural workers. “That’s probably the [undocumented] population. But we can’t know for sure.”

Four percent represents some 10 million wage earners.

Forklift drivers in parkas move cases of produce from towering stacks in a South Salinas cooler to trucks bound for market. Central Coast Cooling is one of 15 Salinas businesses to voluntarily register for E-Verify.

“We try to stay ahead of the curve,” says General Manager Ron Burnett. He believes the produce shipping company’s 80 employees, most of whom are Hispanic, are legal. But he’s made no new hires since implementing E-Verify this year, which affects only new workers’ paperwork.

Burnett says he can be more selective than growers who need harvest crews. “There are a lot of people looking for work,” he says, referring to his 3-inch-thick stack of applications. “Not everybody wants to go out and work in the fields. [A cooler] is a cold, wet environment, but that’s like the beach compared to the wind and the rain.”

To Burnett’s surprise, one of his long-time workers was deported earlier this year. Even immigration officials are moved by the oft-told stories of loyal employees deported because of immigration status. Sharon Rummery, spokeswoman for ICE sister agency U.S. Citizenship and Immigration Services, recalls one business owner who wept.

“That’s the danger of hiring someone who does not have work authorization,” she says. “And that danger can be avoided by using E-Verify.”

But growers say a federal E-Verify mandate would leave crops rotting in the fields. It’s a scenario that’s playing out now in Alabama as sweet potato season picks up in the wake of a restrictive state immigration law passed in June. The rule is being challenged by the feds, but in the meantime, many fearful Hispanic workers – both documented and not – are staying out of the fields, leaving potatoes in the dirt. Though E-Verify applies only to new hires, Monterey County growers see Alabama as evidence of the fear that can drive workers away.

“We’ll do everything in our power to make sure E-Verify by itself doesn’t become law,” says Tom Nasiff, president of Western Growers Association, an Irvine-based lobbyist for California and Arizona farmers. “If all we have is E-Verify without an agricultural fix, we’re in serious jeopardy of losing our workforce and all of our business, and moving all operations offshore.”

Immigration began piloting E-Verify in California and four other states in 2003; by 2009, federal government contractors were required to use E-Verify for new hires. The House Judiciary Committee in September approved a bill that would mandate E-Verify for all employers nationwide; the bill hasn’t yet been brought to the floor for a vote. In October, Gov. Jerry Brown shot back by signing a bill that bans an E-Verify mandate, but the state rule would likely be superseded by a federal law.

Industry and labor groups have found a rare compromise on proposed legislation known as AgJobs. Under the law, a worker who committed to ag work for 10 or 15 years would earn the opportunity to apply for a residential visa.

Salinas growers hope Alabama’s farm labor collapse moves Congress. “We employ people who perform work American citizens just will not do,” Nasiff says.

But unless Sen. Diane Feinstein (D-Calif.) can shepherd a new AgJobs proposal through a deeply divided Congress, the ag industry worries an E-Verify mandate could take effect before a guest worker program is in place to backfill a mass exodus of illegal workers.

“We want access to a stable, legal workforce,” says Jim Bogart, president of the Salinas-based Grower-Shipper Association, “but we need help.”

One evening last fall in San Luis, Mexico, a man with fingers tough as orange peels tugged on Jorge Suarez’s shirt, begging for a job cutting lettuce in Arizona. He said he needed money to help his dying mother, Suarez recalls. But with a line of 800 eager would-be workers and only 100 open positions, Suarez had to turn him away.

“I am the person who tells them, ‘Señores, no hay más lugares,’” – there are no more positions – Suarez says. “It’s horrible. It breaks my heart.”

As human resources director of Castroville-based Ocean Mist Farms, Suarez is one of a handful of growers using the temporary agricultural worker visa, H-2A, in Arizona. Guest workers comprise only about 2 percent of the American ag workforce – largely thanks to the abundance of domestic, often undocumented workers, and because the U.S. Department of Labor will approve H-2A visas only when employers prove there’s a labor shortage.

H-2A employers are required to provide workers with housing and transportation to and from their home countries, which some growers calculate makes guest workers up to 40 percent more expensive than domestic workers.

Suarez goes on annual recruiting trips to Mexico to find a small labor supply for Ocean Mist’s four-month Arizona season. During his visit last fall, after three days of paperwork, an extra lettuce-cutting position opened up. Suarez offered the job to the applicant with the dying mother. The man wept.

The meandering roads that rise and fall in San Miguel Canyon east of Elkhorn Slough lead to hills topped with large brick homes surrounded by kids’ toys. One dirt road leads to a series of trailers fronted by ample porches, where a half-dozen Mexican workers are cooling down on sagging couches one recent Friday at twilight.

Fernandez Farms in Watonsville is one of the very few – and possibly the only – grower to use H-2A labor in local fields. Owner Gonzalo Fernandez has been using H-2A since 2008; of 400 workers this year, he requested 140 under H-2A from the Department of Labor. In Spanish, he says, “What’s right, bringing everyone illegally or with H-2A?”

Legal or not, there are plenty of reasons most growers would rather sidestep H-2A. Most importantly, there’s cheap labor available right now, albeit in largely undocumented proportions. Harvest timetables, they add, rarely move at the same pace of bureaucratic visa processing.

Surprisingly, some of the most immigration-averse think tanks have come around to a foreign workforce.

“At this moment, there are Americans available for every occupation in America except field work,” says Roy Beck, president of NumbersUSA, an Arlington, Va.-based nonprofit dedicated to immigration reduction, both legal and illegal. “We don’t oppose having a massive guest ag worker program.”

Beck, along with increasingly vocal hardliners on immigration enforcement, just want to see something change. “We’re tired of agricultural businesses being outlaws,” he says. “They openly admit they’ve been breaking the law for years.”

Growers have spoken before congressional committees and to the media about the high proportion of unauthorized workers producing America’s food. But with an abundant, cheap workforce, there’s been no carrot driving change. With little enforcement, there’s been no stick, either.

But the fear of a raid is real enough that growers are clamoring for a solution that won’t leave them without crews, or violating federal law.

How closely that solution resembles today’s guest worker program remains to be seen. “H-2A is terrible,” Bogart says. “It is broken and it’s unfixable. It’s time consuming, it’s litigious.”

Although Suarez has had success with H-2A workers in Arizona, he says it’s not a fix. “It only helps us in the small window of November through March in one commodity. What about Coachella, Castroville, Salinas? It’s so expensive and cumbersome. It’s broken.”

Even Fernandez agrees the visa program is onerous. “Every year it gets harder,” he says. But he persists because, he says, “It is the future.”

As a 13-year-old, Crescencio Diaz was nearer to the ground than many field workers, but hunching over to use el cortito, the short hoe, was still excruciating. As a young immigrant from Jalisco, Mexico, Diaz went straight to the fields and picked tomatoes alongside his father and brother.

Now a reserved, matter-of-fact union organizer with the Teamsters Local 890, which has about 2,000 farm worker members, Diaz speaks in a steady, unwavering tone even about the labor issues that most enrage him.

Even with improvements to the industry, like unionized ag workers and a 1975 ban on el cortito, Diaz says farm work has deteriorated in its ability to support a decent quality of life. He blames a mid-’80s surge in the popularity of labor contractors – middlemen who provide skilled crews to growers, generally at lower rates – for driving wages downward.

After Ronald Reagan granted amnesty in 1986 to some 3 million immigrants with the Immigration Reform and Control Act, growers watched employees trickle out of ag for better-paying, less demanding jobs. Between 1989 and 1999, the proportion of IRCA-legalized farm workers decreased by more than half.

Bogart says a path to citizenship isn’t a dealbreaker for ag, and the industry supports AgJobs legislation that would make residential visas available. But some industry players quietly worry that widespread legalization of their workforce could mean another upwardly-mobile exodus from the fields.

Undocumented farm workers are caught in a paradox of invisibility. While they’re largely under the radar today, E-Verify could drive them even further into the shadows.

“They are not the problem in this society,” says Kirk Wagner, senior vice president at Growers Express. “They show up at 4am, they work hard, they pay taxes. By pushing them underground, you don’t solve the problem. They’re going to find jobs [where] they’re going to get paid less.”

Agriculture is still barely a generation away from its Cesar Chavez-era notoriety, and for all the industry’s done to improve its image, some workers’ rights advocates say a guest worker program would be a step backward.

“The history of labor relations has shown that guest worker programs inevitably lead to serious abuses,” says Bruce Goldstein, president of the Washington, D.C., nonprofit Farmworker Justice.

He sees temporary guest worker systems as a return to the bracero program, which supplied 400,000 workers a year in its heydey.

Guest worker programs depress the prevailing wage because workers lack negotiating power. There’s also a civil rights dimension. “These programs are inherently anti-democratic,” Goldstein says. “Their employers can vote, but [workers] have no representation.”

While Gonzalo Fernandez may be leading the way in Monterey County with H-2A, he’s also facing a lawsuit. California Rural Legal Assistance is representing Oscar Leonardo Rodriguez Chavez in a complaint filed in October against Fernandez Farms, alleging visa and wage violations. Rodriguez says on top of his travel costs from his home in Michoacan to the pick-up point in Nogales, Mexico, he and other H-2A workers paid $1,600 for the one-way van ride that deposited them in Watsonville in the dead of night last spring.

According to the complaint, Rodriguez was terminated after he became ill and was able to work only limited hours. Prior to that, he alleges, he’d been paid less than $8 per hour, though his contract promised $10.31.

An assistant supervisor who would only speak on condition of anonymity says Rodriguez just stopped showing up.

Jesus Lopez, a community worker with CRLA, says wage violations are common. “In Mexico, a worker makes at most $5 a day. If he comes here and makes $3 an hour, will he complain?”

There’s more at stake for H-2A workers who speak up. A domestic worker may worry about getting fired, but he or she can seek other work the next day. For people under a guest worker visa, losing a job means getting sent home without a job or a season’s pay.

While growers have plenty of qualms with H-2A, as the possibility of E-Verify looms, they are calling on Congress to furnish a guest worker program.

Goldstein hopes a push for immigration reform from both parties could revive AgJobs. But if H-2A or something similar is the fix, he offers a bleak prognosis: “Farm workers will be doomed to miserable wages and working conditions and powerlessness.”

The distance between Washington and California widens when considering the cultural and economic impacts of immigration policy. “Congress is too far from the Salinas Valley,” Diaz says. “I don’t see them cutting heads of lettuce.”

As politicians debate the specifics of a guest worker program, like a cap on the number of visas, local lawmakers are trying to stay a step ahead.

“[Growers] are alerting us this could impact a substantial number of their workforce,” says County Supervisor Simon Salinas, which has growers discussing lodging for guest workers. “They need to be able to access housing.” He’s looking at revamping aging worker housing complexes and potential sites for new facilities.

Ocean Mist’s Suarez thinks a guest worker visa program isn’t an unreasonable response to E-Verify – with some major tweaks. “If they got rid of the housing requirement, I think you could start seeing H-2A in Salinas,” he says.

Still, the bureaucracy of guest worker programs has growers panicking. Without a cheap and available workforce, some worry their labor-intensive industry will leave Salinas. Suarez says such fears are overblown: “You cannot uproot the land and ship it to Mexico.”

Wagner of Growers Express wonders if there is an immigration problem to fix. “What’s in place now, it functions,” he says. “[The status quo] works, and works to the benefit of everyone involved.”

On a recent chilly morning, Growers Express workers were setting up chairs and a grill for an end-of-season barbecue at their Salinas cooler. It’s long been an annual send-off tradition for workers headed back to Arizona or Mexico.

But if E-Verify becomes a mandate, this festive lunch could become a permanent farewell.

Source: MontereyCountyWeekly.com, “Growers say E-Verify will destroy the modern ag industry, but Congress has yet to offer a fix” by Sara Rubin, 3 Nov 2011.


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