Can N.C. Farmers Mistreat Their Guest Workers with Impunity? | North Carolina | Indy Week
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Can N.C. Farmers Mistreat Their Guest Workers with Impunity? 

When José Alberto Aguilera-Hernandez first arrived at the Jackson Farming Company in Autryville in 2011, the work was hard but good, better-paying and more consistent than he could find as a taxi driver in southeast Mexico.

"You have to make a lot to make a little bit [in Mexico]," he says through a translator. "At least [in the United States], you can make more money for your family."

The early-summer trips were arduous. In June, he would take a thirteen-hour bus ride from Veracruz to Monterrey to obtain his H-2A guest worker visa. From there, another bus ride to North Carolina took three days and three nights in intense heat and humidity.

Aguilera-Hernandez made this trek from his home to the Jackson farm, which sponsored his visa, every summer for four years. Once he reached Autryville, he drove tractors for a few months; then, in the fall, when the sweet potato harvest came, he joined a hundred others in the fields. For six long months a year, he did his job, sent money home to his wife and two children in Mexico, and had few complaints—although he says he noticed the amount he was paid didn't always match the number of hours he worked.

Then, he says, things went sideways.

According to a lawsuit he and six other workers filed in federal court last December, in late summer Aguilera-Hernandez "accidentally damaged a gasoline pump" that was used to fuel the farm's vehicles. In court documents, Aguilera-Hernandez alleges that Rodney Jackson—the vice president of the farm and son of its owner, state Senator Brent Jackson (see sidebar, page 14)—pulled him out of work for three days and told him he would to pay $1,000 to cover the cost of the pump.

But for the next two months, he says, he didn't hear any more about it.

Then, at about 10 a.m. on October 27—the same day Senator Jackson held a political fundraiser at the farm that netted $52,400, according to campaign finance documents—Rodney Jackson pulled Aguilera-Hernandez out of work again and demanded he pay for the pump in weekly wage deductions, which amounted to about $480 a week for the last five or six weeks of the season, Aguilera-Hernandez says.

Aguilera-Hernandez refused; he gave the same response when Jackson offered to lower the deduction to $200 per week. Aguilera-Hernandez was working as many as sixty hours but only earning about $600 a week. As the lawsuit notes, that deduction would have reduced his wages to below the minimum wage.

According to the lawsuit, Rodney Jackson "then became really angry," fired Aguilera-Hernandez on the spot, then threatened to fire his brother, who also worked on the farm, and told Aguilera-Hernandez he had thirty minutes to leave the premises before he called the cops.

Aguilera-Hernandez says his supervisors watched suspiciously as he waited on the side of the road for the owner of a nearby store to pick him up. Rodney Jackson did not give him his "return travel payment," which is required by federal rules, and said he couldn't produce Aguilera-Hernandez's final paycheck until the weekend, four days later, the lawsuit says. That meant Aguilera-Hernandez had to foot the bill for the more than $500 it cost to get back to Mexico, according to court records. He was left with two choices: try to scrape together some money to leave, or stay in the States and try to find other work as an undocumented immigrant.

"I felt like I didn't know what to do or where to go," he says. "I'm not from here, so I had no idea where I was going to go."

At his friend's store, he tried to sort out his options. He made a call to Justin Flores, the vice president of the Farm Labor Organizing Committee in nearby Dudley, who came to pick him up. His brother loaned him money for a plane ticket back to Mexico, and, in return, Aguilera-Hernandez let him keep his last paycheck.

In court documents, the Jacksons deny Aguilera-Hernandez's version of events. Their lawyer, Paul Derrick, says there was "more to his termination than meets the eye," but he wouldn't say what that was.

Aguilera-Hernandez wasn't the only migrant worker disgruntled with the way things worked on the Jackson farm. On December 16, Aguilera-Hernandez and six fellow farmworkers—on behalf of themselves and at least fifty other workers—sued the Jacksons for unpaid wages. They say they weren't fully reimbursed for expenses, were clocked out while traveling between fields, and were paid below the federal government's adverse effect wage rate, which is the lowest amount an H-2A worker can legally be paid. The workers' lawyer, Bob Willis, says that each worker probably lost between $50 to $100 a week due to the farm's alleged wrongdoing.

Then, according to an amended complaint the farmworkers filed in April, the farm exacted its revenge. The workers say the Jacksons intentionally omitted them from the list that would have brought them back to the farm this year—retribution for filing the lawsuit, they charge. If true, that amounts to a violation of federal regulations.

The lawsuit is an unusual step taken by workers in a program that has been rife with controversy, including frequent complaints of wage theft and retaliation, housing issues, and safety violations. In essence, the guest worker system is designed to give employers total control over workers who rely on them for the visa they need to legally come to the United States.

"The main problem is that if the grower doesn't request you, you don't have access to the U.S., and if you're fired you often only have a few days to get out of the country," Flores says. "One, a grower can threaten you with deportation, and two, there's a not-so-subtle threat of, 'if you complain, you're going to be stuck in Mexico like these guys are.' A lot of guys think that if they don't finish the work with a grower, they'll lose the opportunity to ever get a visa again."

The H-2 is a temporary visa that allows businesses to bring laborers from other countries for seasonal work. The program is divided into agricultural (H-2A) and non-agricultural work (H-2B). These workers are requested by the farms themselves, usually either via a recruiter in Mexico or in the United States, a cooperative like the North Carolina Growers Association, or directly by the farmer.

Since the H-2 program's start in 1986, North Carolina has had one of the highest concentrations of H-2A workers in the country. According to U.S. Department of Labor data, the state had 17,696 H-2A workers in 2015, second only to Florida.

Part of the reason lies with a former state employee named Stan Eury, a "rural manpower representative" at the state's Economic Security Commission who was fired in 1989 for growing marijuana, according to records obtained by BuzzFeed last year. A month after being sacked, Eury founded the North Carolina Growers Association, a trade group for farmers. Eury and the NCGA quickly built an empire recruiting H-2A workers from Mexico.

By the mid-nineties, BuzzFeed reported, the NCGA was submitting more than 80 percent of the state's H-2A requests. Today, the NCGA remains the top employer of H-2A workers in the country, with some 9,500 employees at its 740 member farms, says executive director Jay Hill.

According to the N.C. Farmworker Institute, these H-2A workers are among the 150,000 workers and their dependents who migrate to North Carolina every season, a number that has doubled in the last twenty years. Ninety percent of North Carolina's farmworkers are undocumented, according to a 2011 Oxfam America/FLOC report.

Deborah Weissman, a UNC law professor specializing in immigration and human rights, says that a lack of legal access compounds the troubles migrant workers face.

"[Migrant workers] have a whole host of issues—unsafe working conditions, wage theft, discrimination, sexual abuse, housing conditions," Weissman says. "But none of those are going to get remedied if people don't think they can readily access a lawyer."

There are several factors behind farmworkers' hesitance to pursue legal action. One is that many migrant workers don't know their rights. Another is that, by design, the H-2A program makes the workers guests of their employers; if they get fired, they have to go home, and their families suffer financially.

"For farmworkers, there are a lot of cons to reporting violations at all, regardless of whether their complaints turn into lawsuits," says Sean Driscoll, director of public relations for Legal Aid of North Carolina, which has previously sued the Jacksons on farmworkers' behalf. "They face retaliation from employers, blacklisting, or getting sent back home without earning the money they need to support their families."

"Working at the Jackson farm, we experienced a lot of problems from the beginning," Valentin Alvarado-Hernandez, another plaintiff in the lawsuit, wrote in a letter read at a protest at Senator Jackson's legislative office in May. "We began to notice that the grower and supervisor would steal our wages by punching us out for anything they could—changing fields, waiting for equipment to come, or our water breaks. ... Little by little, this added up, and over the season, he stole thousands of dollars from our wages."

"They'd always have us clocked out when we were going from one field to another," says Esdras Mendiola-Bordes, who also joined the lawsuit. "And they would make us wait about thirty minutes or an hour, and then we'd work for another fifteen minutes, and they'd clock us out again when we'd leave. And we'd ask [our supervisor] why he was clocking us out, since this was all work, and he'd say, 'I'm just following orders.'" (In court documents, the Jacksons deny this allegation.)

PHOTO BY BEN MCKEOWN
  • Photo by Ben McKeown

The workers also claim that they were paid less than the federal adverse effect wage rate—the minimum H-2A workers can earn, currently $10.72 an hour—on jobs that involved a "piece rate." For example, workers could be paid $1 per box of strawberries. But if they didn't pick ten boxes in an hour (something the workers say is nearly impossible), they wouldn't earn what the federal government mandates. The law compels the employer to make up the difference. The lawsuit claims the Jacksons didn't do so.

Derrick, the Jacksons' attorney, denies those allegations. "Based on the records I've seen, these folks were paid correctly," he says. He declined to share those records with the INDY.

The farmworkers interviewed by the INDY also say that Rodney Jackson and supervisors at the farm would often harass or overwork them.

"There was a time where we worked really, really long rows, and it took us two or three hours to finish a row, and [Rodney Jackson] wanted to pay us two dollars, or a dollar each per row," Mendiola-Bordes remembers. "And so we told him we would do this work, but we wanted to be paid by the hour, not the row, and he got really mad and yelled something in English and slammed the door." (Rodney Jackson did not respond to repeated requests for comment.)

According to multiple complaints and lawsuits lodged against the Jackson farm in the last two decades, this sort of treatment wasn't uncommon.

In July 1998, an employee named J. Carmen Fuentes suffered a heatstroke while working in the farm's tomato fields, according to court records. He told his supervisors he felt dizzy, but he never received medical attention. He slipped into unconsciousness before he was finally taken to the hospital, where he fell into a permanent vegetative state. The North Carolina Industrial Commission ordered the Jacksons to pay for Fuentes's around-the-clock care.

In 2002, a worker named Julio Cesar Guerrero alleged that the Jackson farm "kept the workers' drinking water on a moving truck in the fields, forcing them to run after it with their mouths under the spigot," according to a 2004 article in The Nation. Guerrero was fired after filing a complaint with the N.C. Department of Labor; he filed a lawsuit, which was settled out of court in 2004.

That year, the FLOC reached a collective bargaining agreement with the NCGA, of which the Jackson Farming Company was a part, after the FLOC's five-year boycott of the Mount Olive Pickle Company following a migrant worker's death. The agreement included hiring by seniority, wage increases, a grievance procedure, and the official end of an NCGA blacklist of workers who complained.

In 2014, workers at the Jackson farm allegedly discovered that they were being clocked out while moving between fields and being paid less than the adverse effect wage rate, then $9.87 an hour. In protest, thirty-two workers filed a grievance against the Jacksons with the NCGA; in September 2014, they reached a confidential settlement.

At the end of 2014, the Jackson Farming Company left the NCGA, meaning that it would no longer have to deal with FLOC or the collective bargaining agreement. Flores says that at least five of the leaders of the grievance were not asked back the next season.

Dr. Thomas Arcury, director of the Center for Worker Health at Wake Forest Baptist Medical Center, has been researching migrant-worker conditions since 1995.

In 2010, Arcury and a Wake Forest team investigated housing at 183 labor camps in eastern North Carolina. At every camp, they found at least four violations, including but not limited to roach and rat infestations, dysfunctional plumbing, and polluted drinking water.

A year later, another Wake Forest study Arcury was involved in found that fewer than half of the workers surveyed had access to soap for handwashing, only a third received pesticide safety training, and just 15 percent had access to safety equipment.

Across the state, Arcury says, housing arrangements range from "a house trailer with five or six guys living in it to a barracks-style with a big room that could be housing for fifteen to twenty workers." But the Jackson farm's housing—set up like a summer camp for adults, with some rooms that easily fit a dozen people into bunk beds—is nicer than at most North Carolina labor camps, Flores says.

An N.C. Department of Labor representative told the INDY that the department had awarded the farm the designation of a "gold star grower" twice, in 2007 and 2012, as part of a program that "recognizes growers who provide farmworker housing that meets and exceeds all of the requirements of the Migrant Housing Act of N.C.," according to the department's website.

Still, it's not just housing problems that worry advocates. Driscoll, of Legal Aid, says wage theft is common, too.

U.S. Department of Labor statistics show that, in 2015, the Wage and Hour Division concluded 270 investigations of H-2A worker complaints and awarded more than $2.1 million to more than 2,700 workers. Twenty of those investigations were in North Carolina, where 270 workers won more than $200,000 in back wages. In addition, $94,000 was assessed in civil penalties against North Carolina growers for wage violations.

The NCGA's Hill dismisses most of these complaints as misunderstandings. "We encourage the worker to talk to the grower," he says. "The vast majority of types of complaints we get are not so much violations, but the lack of work." 

But advocates say these problems shouldn't be brushed aside. While Arcury acknowledges that workers in the H-2A program have more rights and receive better treatment than undocumented workers, he says there are insufficient labor and health regulations covering farms. He calls the U.S. Environmental Protection Agency's worker protection standards "totally inadequate." In addition, he adds, most U.S. Occupational Safety and Health Administration regulations have exemptions for agriculture.

Arcury also notes that, under the Migrant Housing Act, housing inspections are only required before the housing opens and when a complaint is made.

"But then," he says, "the question becomes, will a worker will actually file a complaint?" (According to the NCDOL's 2015 annual report, the state conducted 1,714 preoccupancy occupancy inspections and 114 compliance inspections; officials issued 174 violations that fined farmers $153,526.)

The biggest impediment to addressing these issues, Arcury says, is getting people to care about those who "suffer so we can have cheap food" enough to push for changes.

"After doing this for twenty years," he says, "it's somewhat disheartening that things really haven't gotten that much better—if they've gotten better at all."

In December, at the end of the season, FLOC organizers visited the camp to recruit additional plaintiffs for Aguilera-Hernandez's lawsuit. "We were nervous at first," Alvarado-Hernandez says, "but we decided we had to do something, because we were always just letting things happen without saying anything."

Six farmworkers, including Mendiola-Bordes and Alvarado-Hernandez, signed on.

After the lawsuit was filed, the Jackson Farming Company's food safety coordinator, Heather Register, "repeatedly and directly telephoned almost all if not all of the named plaintiffs other than" Aguilera-Hernandez, according to allegations made in court records, threatening to blacklist them if they went ahead with their case.

When it came time to bring the workers back, the workers allege, she made good on her threat. (In court records, the Jacksons deny this allegation. Register did not respond to interview requests.) To date, only one of the seven plaintiffs has been able to find new work in the United States. Each month they're not working, the workers are losing thousands of dollars.

That's why they want to come back, despite all that's happened: they don't have better options. Aguilera-Hernandez says that if he can't return to the United States (he's currently in Mexico), he'll have to go back to working as a taxi driver, making the equivalent of $150 per week. Alvarado-Hernandez says his alternative is working in Veracruz's cilantro fields making around 500 pesos—just $27—per week.

On May 26, the FLOC hand-delivered petitions to Senator Jackson's legislative office asking him to reinstate the workers and pay them the back wages; Jackson wasn't there. At a press conference beforehand, Raul Jimenez, a former farmworker, read Alvarado-Hernandez's letter out loud.

"I would like to say to Senator Jackson," the letter said, "why are we not being given work this year? We only ask for what is ours, and what the law says: that we should get paid, and that the supervisors stop abusing people. We don't deserve to lose our jobs because we didn't stay quiet."


A sign for Jackson Farming Company in Autryville, N.C. - PHOTO BY BEN MCKEOWN
  • Photo by Ben McKeown
  • A sign for Jackson Farming Company in Autryville, N.C.

The Ire of Jones Street

José Aguilera-Hernandez, Esdras Mendiola-Bordes, and Valentin Alvarado-Hernandez told the INDY that they didn't interact much with Senator Brent Jackson. Though he was the Jackson farm's owner, he wasn't involved in its day-to-day operations. But his work in the General Assembly hasn't made life any easier for the farmworkers he employs.

Elected in the 2010 tea party wave, Jackson (who declined to comment) rose quickly through the ranks. He currently serves as cochairman of the Senate Appropriations Committee. In that role, he's presided over cuts to legal aid in North Carolina—especially targeting Legal Aid of North Carolina, the only one of the state's three legal-aid providers that has a unit dedicated to helping farmworkers.

Farmworker organizing efforts have also drawn the ire of the General Assembly.

In 2013, the legislature passed the sweeping Regulatory Reform Act, called House Bill 74, which stripped farmworkers of the ability to collectively bargain and barred corporations from putting pressure on the farms they get their products from to ensure fair labor standards. If HB 74 had passed a decade earlier, says Justin Flores of the Farm Labor Organizing Committee, the FLOC wouldn't have been able to reach a collective bargaining agreement with the NCGA.

"What this General Assembly did, including Senator Jackson," says N.C. AFL-CIO secretary-treasurer MaryBe McMillan, "was make farmworkers even more vulnerable by limiting their ability to come together and create these supply-chain agreements so they could get corporations to put power on growers to make sure farmworkers are paid decent wages and treated fairly."

According to state legislative records, Jackson had his hands all over HB 74, serving on the Senate committees that considered it, taking a leadership role in hashing out the differences between the House and Senate versions, and eventually voting for the final package. After it was signed, Senate leader Phil Berger said in a press release that Jackson, along with senators Harry Brown and Andrew Brock, "deserve a lot of credit for crafting legislation that continues to eliminate the needless, duplicative, and confusing regulations that hamstring our job-creators and our economy."

This article appeared in print with the headline "Crooked Rows"

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