Unionizing Farmworkers With an H-2A Visa

The UFW, once a powerhouse under legendary and controversial labor and civil rights organizer Cesar Chavez, is today much diminished: its membership has fallen from sixty thousand in the 1970s to around seven thousand today, a consequence of the union’s struggle to organize the country’s agricultural workers, increased competition from global food imports, and concerted grower-led efforts to roll back UFW wins. But in 2019, New York State passed the Farm Laborers Fair Labor Practices Act (FLFLPA), which extends collective bargaining rights to the state’s estimated hundred thousand farmworkers. To ease unionization, it requires employers to recognize a union once a majority of workers have signed union cards, which the union says is a necessity in the notoriously anti-union sector. (Less than 1 percent of farmworkers nationwide are unionized).

The Retail, Wholesale and Department Store Union (RWDSU) and its parent union, the United Food and Commercial Workers International Union (UFCW), have already been organizing farmworkers in the state, primarily focusing on vineyards as well as nurseries and dairy farms. Now the UFW has joined the push, organizing some five hundred workers at five New York farms — four orchards and a vegetable farm. Cahoon Farms is one of them.

But the workers that UFW is organizing aren’t just any farm laborers. In New York, the union is focused on seasonal H-2A visa workers, as well as organizing local, predominantly undocumented workers.

The H-2A program permits employers to bring guest workers into the United States for up to ten months, primarily to do agricultural work. It has expanded significantly in recent years, increasing by 200 percent from 2010 to 2019. As others have pointed out, the ballooning H-2A workforce will soon rival the 450,000 workers recruited in 1954, the height of the Bracero program, which brought millions of Mexican guest workers to the United States before the program was terminated in 1964. The rising number of H-2A visas persisted even as the country deported more than 142,000 immigrants last year. United States Agency for International Development (USAID) head Samantha Power has called the expansion of H-2A visas a “critical priority”; last month, she filmed a video in Guatemala, touting the H2-A program as a means of economic mobility for Latin American workers.

But upon arriving in the United States, H-2A workers are extraordinarily dependent on their sponsor employer. Undocumented workers are famously vulnerable to labor exploitation, but H-2A recipients don’t even have the ability to leave a farm and go elsewhere. Their wages are set by the H-2A program — last year, the New York area minimum wage for guest workers was $16.95 — and often depend on returning to the same farm year after year. Many H-2A recipients, Cahoon’s included, live in employer-provided housing and rely on the boss to drive them into town so they can buy groceries and incidentals.

They do grueling, dangerous work, braving extreme weather (both hot and cold) and scaling long ladders. Accidents are not uncommon.

UFW worker outreach organizer ​​Gabriella Szpunt told me that a Cahoon H-2A worker who was in his seventies and had been coming to the farm since 1998 fell off a ladder one week into the 2022 year’s harvest and was bedbound for the rest of the season. According to Szpunt, Cahoon did not facilitate the possibility for his wife or family to travel to the United States to care for him; nor did they make it possible for him to return home early after his injury.

The union says the worker was unpaid for sick time for the duration of the season; no worker’s compensation claims were filed on his behalf by the company; and Cahoon did not ensure the injured worker was bathed, fed, or receiving basic medical attention. That worker died last year, and, according to the union, Cahoon made no effort to contact the family after he passed away or to acknowledge the worker’s decades of service to Cahoon. (Cahoon Farms did not respond to a request for comment on this allegation.)

There are few penalties for employers who retaliate against H-2A workers for speaking up about workplace problems, even when doing so entails revoking their visas and sending them back to their home countries.

Anti-Union Retaliation

Grant, the Cahoon worker, is an H-2A recipient from Montego Bay, Jamaica. He’s a member of the farm’s harvest crew, which works from August through November. Speaking with me recently over Zoom, he brought up his crew’s assignment to low-quality areas of the orchard in reference to letters he, King, and several other union leaders received as they left Cahoon Farms on a bus early on the morning of November 5, 2023, to board flights home to Jamaica. (Many of Cahoon’s H-2A recipients are from Jamaica, though there is also a sizable group from Mexico as well.)

The union says around half of Cahoon’s H-2A workers were given such letters, including four of the negotiating committee’s five members. The letters, viewed by Jacobin, stated that the workers had not met Cahoon’s productivity standards, meaning that they would not be invited back to the farm.

“My crew members knew what was going to happen before it happened,” Grant told me. “We knew we were not going to be invited back.”

The union believes the decision not to renew these workers’ H-2A visas is retaliation for the workers exercising their right to collectively bargain. But last year the New York Attorney General’s office decided to pause enforcement of the 2019 law that grants them that right in light of a federal lawsuit filed by a coalition of growers, Cahoon included. The state’s Public Employee Relations Board (PERB), which administers farmworkers’ rights, is no longer processing union election filings or unfair labor practice (ULP) charges.

The October 2023 filing, whose other plaintiffs are the New York State Vegetable Growers Association along with A&J Kirby Farms, Porpiglia Farms, Crist Brothers Orchards, and Lynn-Ette & Sons Farms Inc., argues that the state’s granting of collective bargaining to H-2A workers violates the federal program’s rules.

“Collective bargaining cannot apply to temporary agricultural guest workers on H-2A visas because their terms and conditions of employment are governed by specific, time-limited contracts required by federal law,” reads the growers’ lawsuit. “Additionally, the Act contains an impermissibly broad definition of employee that has been interpreted to include workers present on term-limited visas. These workers are not ‘employees,’ but instead perform temporary services pursuant to limited government contracts.”

The lawsuit goes on to argue that union proposals concerning seniority could force growers to rehire guest workers even if domestic workers are available, which would be a violation of the H-2A program’s requirements. It also takes issue with the FLFLPA’s granting of “card check” to farmworkers, characterizing this provision as a denial of workers’ “right to a secret ballot,” a well-worn employer objection to card check.

Many union organizers see this objection as rooted not in employers’ concerns for workers’ democratic rights, but rather in their preference for a unionization process that makes it far easier for bosses to convince their workers not to unionize, particularly through the use of firings of pro-union activists and captive audience meetings aimed at scaring workers out of voting for the union.

The Department of Labor (DOL) has proposed rules that strengthen protections for H-2A workers, and in July 2023, the DOL’s principal deputy administrator said state laws addressing worker organizing and collective bargaining “are not preempted by the H-2A requirements.” The Department of Justice (DOJ) weighed in last month in favor of the workers, writing, “Nothing about a state law that requires agricultural employers to collectively bargain with the representatives of employees, including H-2A workers, conflicts with the requirements or objectives of the H-2A program.”

A hearing on the case is scheduled for February 21 at the US district court for the Western District of New York in Buffalo. There, a Donald Trump–appointed federal judge will preside over a fight with high stakes for farmworkers.

As for Grant and King, they say they just want to come back to work at Cahoon this summer.

“It’s not like we’re asking for a million dollars or anything out of the ordinary,” Grant said. “We just want to be treated right like every other citizen in America.”

“The work has fun moments, and a lot of us love our jobs,” King explained. “But we do a lot. We are the backbone of America, and we work extremely hard. I just want the bosses to treat us better, because we are the ones doing the work for them.”

Freeze on Organizing

With the New York Attorney General’s office responding to the lawsuit by putting farmworker organizing on hold, agreeing to a temporary injunction that pauses the processing of union petitions and ULP charges until the case is resolved, New York’s farmworkers — and not just those on H-2A visas — have been left in the lurch. The state may have decided to temporarily put the law on pause with a view to the long term, focused on defending the legislation against the growers’ lawsuit rather than the short-term consequences of such a pause. But those who have begun organizing and bargaining are now without the bill’s protections.

“Workers, and not just H-2A workers, are now waiting in real time and they’re exposed to retaliation,” UFW communications director Antonio De Loera-Brust told me. “Our biggest demand is: while this court case works itself out, don’t put all these farmworkers’ rights on pause.”

New York is one of only three states that protect farmworkers’ right to organize; California and Hawaii are the other two, though California’s protections are stronger. Now, with the growers’ lawsuit, the future of those protections is unknown.

“The suit is focusing on H-2 workers and trying to argue that they’re excluded from the FLFLPA,” De Loera-Brust told me. “But we really view it as a backdoor effort to try to overturn the law in its entirety. ​​And even if we win, real harm has been done and is being done to workers right now. Workers who voted to certify their union are not getting the benefits of a contract or not moving toward negotiations. They’re in limbo.”

“We’re deeply disappointed that this suit was filed and is putting organizing in jeopardy,” Jessica García, assistant to the president of RWDSU, told me. At least six RWDSU/UFCW farmworker unions across Western New York and Long Island have been certified by the PERB, and the coalition has several additional active organizing campaigns.

“There are no collective bargaining agreements being negotiated right now,” García said of the effect of the growers’ suit on the union’s work. “There’s just absolutely no way to have employers agree to come to the table while the suit is pending.”

The farmworkers RWDSU have organized do not include H-2A recipients, but the union says it supports those workers’ organizing too, as do a host of other worker organizations in the state. After all, if H-2A workers are going to come to the United States, it is in every farmworker’s interest that they receive similar benefits as their citizen counterparts, lest they continue to be a particularly cheap alternative to domestic labor. Said García, “Our union certainly believes that all workers should have the right to organize and improve their working conditions and to do so through collective bargaining agreements.”

Denial of Rights

When New York senator Robert Wagner wrote the National Labor Relations Act (NLRA) in 1935, he carved out certain workers as a concession to Southern politicians. The bill protects private sector workers’ collective bargaining rights, but as a concession to those legislators’ desire to retain control over their region’s mostly black farm laborers and domestic workers at the time, the legislation exempts both. The NLRA is still the law of the land (though in weakened form after the 1947 Taft-Hartley Act), and those workers still contend with the legal obstacles to not only unionization but to protections other workers have long taken for granted, from overtime pay to guaranteed days of rest to workers’ compensation and disability benefits.

In New York, farmworkers responded to this exclusion by pushing legislators to pass a bill addressing the issue explicitly, forming the Justice for Farmworkers Campaign. (Domestic workers won a state bill of their own in 2010.) The FLFLPA does so by extending collective bargaining rights as well as other standard worker protections to farmworkers. In 2019, the newly elected majority Democratic state legislature passed the bill, which was sponsored by State Senator Jessica Ramos. The win was decades in the making.

“It all began with farmworkers going up to Albany in the early 1990s to testify about working conditions and discovering that they were excluded under these labor laws,” remembered Richard Witt. Witt is the executive director of Rural & Migrant Ministry (RMM), a group that organizes with farmworkers in New York and has become a central hub of the Justice for Farmworkers Campaign. The group focuses on popular education, operating four centers in rural farming areas across the state, doing everything from workers’ rights trainings to youth leadership development programs to aiding farmworkers in organizing with other workers. But in the 1990s, RMM began pushing for a collective bargaining bill that would give farmworkers the same rights as their counterparts in other industries.   

“We didn’t set out to be a lobbying organization; we got pulled into that back in the ’90s because workers were saying, ‘Would you stand with us? We don’t have anybody else.’” Witt explained. Once the farmworkers had realized the extent of their exclusion, they held a statewide assembly. There, it became clear that they needed the right to collectively bargain if they ever hoped to fight the manifold injustices to which they were subject.

“They wanted to be treated equally under the law, and the one piece that really got everybody was there was no protection when bargaining collectively,” Witt said. “And if we’re not going to be able to bargain collectively, then what chance do we stand in addressing any of this?”

Lacking those protections, stories of farmworker abuse at the hands of growers were rampant. Witt recalled receiving a phone call one night in September 1991, shortly after he had joined RMM. A farmworker in the onion fields in Orange County, New York, had been run over by his boss, and when he drove out to investigate, Witt found that the other workers had been told to stay quiet or risk losing their jobs.

The police arrived, but according to Witt, the employer was only charged with a minimal offense. Another time, a group of legal service attorneys were in one of the labor camps working with farmworkers; while sitting in their car, they say they were attacked by growers, with their tires slashed and their car bashed in.

“It just really opened my eyes to how vulnerable farmworkers were,” Witt said. “There was a period in the ’90s of ongoing tension and battle and farmworkers not only being tremendously vulnerable, but nobody standing up for them because most people didn’t even know there were farmers in New York.”

So the organization set to work educating New Yorkers and pushing for legislation. Nearly three decades later, the FLFLPA passed into law. But, as is often the case, no worker victory lasts long before employers mobilize to undo it. Witt, like other farmworker organizers, sees the growers’ lawsuit as an attempt to do precisely that.

“They’ve been trying so hard to dismantle the legislation in so many different ways,” he said, adding that Cornell University’s College of Agriculture and Life Sciences, which has long faced criticism for its ties to the state’s agriculture industry, spent decades opposing the bill. “The ag business is not just trying to come at this from the courts or legal; they’re trying every which way they can grab a hold of to do it. It’s a concerted campaign against this legislation, which means it’s a concerted campaign against farmworkers being treated justly and equally.’”

Jordan Wells, too, brought up Cornell’s agricultural school as a farmworker foe. Wells is a senior staff attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, but he used to work for the New York Civil Liberties Union (NYCLU) where he backed legislation like the FLFLPA. Before that, he attended Cornell, where he was a defender of the school’s former Cornell Migrant Program, which supported farmworkers upstate by connecting them with their local communities and with available services relating to education, health, and legal protections.

“A formative experience for me was when the agricultural industry pressured Cornell to eliminate the Cornell Migrant Program,” Wells told me. “That program got a little bit too close to activities that the agricultural industry saw as detrimental to their bottom line, and they put the heat on Cornell to get rid of that program, which they summarily did.”

Wells agreed with the UFW’s belief that the growers’ suit is a backdoor attempt to overturn the law, as did Kate Bronfenbrenner, the director of labor education research at Cornell University’s School of Industrial and Labor Relations.

“Employers have discovered that the Trump judiciary is a friend of theirs, and they’re now challenging everything, taking everything to the courts,” she told me.

This is a particular problem for lawsuits concerning workers’ organizing rights: they often lead to rights being frozen, as they have been for farmworkers in New York, while the litigation winds its way through the courts. A suit need not have merit to work as a delay tactic, and given workers’ precarity, such an obstruction can provide enough time to hamper a union effort, or even destroy it. Examples of that approach are visible well beyond upstate New York: Starbucks and Trader Joe’s have used it in their response to union drives at their companies. Litigation is now employers’ go-to strategy for fighting not only worker organizing but all manner of regulations.

As for how workers can overcome the tactic, Bronfenbrenner emphasized that it will take the type of public pressure that would make judges think twice before siding with employers. That requires “making it so the cost of doing the right thing is less than the cost of doing the wrong thing.”

“Right now, most of the judges feel like there’s not much of a cost to do the wrong thing,” Bronfenbrenner said. “It may be very clear that, according to precedent, the decisions should go a certain way, but as we have seen, it doesn’t really matter, because the judges don’t feel accountable. We need to make them accountable. Whether it’s an administrative law judge or a federal judge, when there’s enough public outcry and it starts to feel like they’re going to become a social outcast, then they might change their view.”

Farmworkers Need Allies

That requires a strong labor movement, one more willing and able to fight than we have in most of the country. Yet New York is an outlier, with an unusually organized workforce and a few pro-labor elected officials, State Senator Ramos included. Were the public, and especially the state’s existing labor movement, to aggressively back farmworkers like Grant and King, as well as the many others — both H-2A recipients and full-time New Yorkers — organizing in the state, and make denying their rights cost a grower, one can imagine enough pressure to enforce the FLFLPA despite employer resistance.

“Labor has had a tendency to try to rely on the legal framework,” Bronfenbrenner said. “But the fact is that employers know what many of us know, which is that the legal framework is only as solid as the labor movement.”

In its recent statement of interest, the DOJ wrote that the growers’ argument rests on a “misunderstanding” of the “complementary role that state laws and collective bargaining play in the H-2A program,” going on to say that the plaintiffs’ “preemption claim fails and does not support a temporary restraining order, preliminary injunction, or any other relief.”

“An employer can negotiate a collective bargaining agreement that fully complies with the requirements of the H-2A scheme,” reads the DOJ statement. “Such bargaining can also help advance labor standards and conditions that can improve agricultural jobs and thus help prevent an adverse effect on domestic workers similarly situated, one of Congress’ core goals in establishing the H-2A program.”

But many in the farmworker movement believe that growers see organizing as a threat that they will not abide, particularly when the people exercising those rights are H-2A recipients. The growers have their own associations, their own voice, but they are determined to stop their workforce from assembling itself similarly. Some of New York State’s larger growers see the growing H-2A workforce as their future, and they are proving that they will do anything to stop unionization from interfering with their ability to exploit them as they see fit.

Whether the DOJ’s statement will sway the Trump-appointed judge remains to be seen. Most in the farmworker movement expect the growers to appeal any unfavorable ruling, and they’re digging in for the long haul. The union hopes the DOL will intervene, potentially by declining to grant growers like Cahoon H-2A visas for recipients other than those who have previously worked there, such as Grant and King. They urged supporters to sign a petition calling on the DOL to do so.

“We just want to come to a mutual agreement so we can do what we’re supposed to do,” Grant said. “Here in Jamaica, if you’re sick at work, you get paid sick time. If you get injured on the job, you get compensation. That’s true for so many jobs in America, but not for farm work.”

The UFW, meanwhile, will hold a rally in Buffalo on the morning of the February 21 hearing. The union says it needs allies.

“It’s easy for consumers and others to not realize that they’re already in a relationship with farmworkers,” Witt said. “But we are already in a relationship, farmworkers are feeding us, and the question is: How are we going to honor that relationship?”