Can you imagine if you suddenly had to come up with $337,000 to pay back wages and fines? This is what one farm in Maine is facing. Although we aren’t privy to the details of what the farm knew about their legal obligations and when they knew it, we do know the United States Department of Labor (DoL) found that they violated both the H2-A Temporary Agricultural Visa Program and the Migrant and Seasonal Worker Protection Act (MSRA). As a result, they owe $245,351 in back wages for 117 employees and another $92,114 in civil penalties. Being on the losing end of a federal case and being on the hook for that kind of money that can’t be fun for any farm. Ouch.
Here at Farm Commons we say this over and over again. One more time for the folks in the back: Employment law is not flexible. There are rules to follow and tough consequences for those who do not. This case is a pretty darn good example of that.
The H-2A program can be a life line for many farm operations because it was designed to fill occasional gaps that have become cavernous holes in the agricultural work force. (It can also be a vehicle for exploitation but that’s a story for another day. Actually, see Civil Eats’ story if you are interested – they sum that up well!) Under the program, American farm operations can be eligible to employ temporary workers from outside of the United States under special rules – usually for up to a year. However, farm employers are only eligible for the program if they can demonstrate that they have tried to fill the positions with American workers and could not. They also have to show that using foreign workers will not “adversely affect the wages and working conditions of similarly employed U.S. workers.” See Department of Labor for more information on the H-2A program and those requirements.
In the case of Backyard Farm, the DoL found that the farm dismissed some American workers and didn’t re-hire other American workers and instead gave their jobs to H-2A workers. Backyard Farm also didn’t pay American workers as much as they were paying H-2A workers in the same positions. They also didn’t provide H-2A workers with copies of their contracts, as required by law.
Sidenote: There’s a discrimination angle here, which this DoL case doesn’t seem to explore, but a 2018 Washington state case did find discrimination involving similar H-2A issues on a berry farm. An important point to note here is that discrimination does not just mean you can’t choose not to hire a worker because they are from a non-American country. It goes the other way too. You also can’t choose to hire a worker because they are from another country and not America. The point there is: Employment discrimination is making hiring and firing decisions based on race, ethnicity or gender. Period. If you want more on the topic of discrimination on the farm, we have a whole guide for you! See Avoiding Discrimination on the Farm).
As far as MSPA goes, Backyard Farm got into trouble because they obtained workers through temp agencies that were not registered as “farm labor contractors.” This is an important point to note. It may have been the temp agency that was breaking the law by not registering as required, but the farm using the agency was still on the hook for using them (and for not checking to see that the agent was in fact registered). Farmers using an agent to source labor must make sure the agent is registered!
The important takeaway here for farms is that where folks choose to use the H2A program the DoL takes the rules seriously and will enforce them. Compliance and documentation of it is very important.