The Comparative Jurist

Green is the New Orange: Solving the Problem of Citrus Greening for H-2A Guest Workers

By Sami L. Alsawaf

Introduction

The United States agriculture economy relies heavily on foreign workers—in 2011, there were 55,000 workers on H-2A visas. Guest workers in the U.S. are not immune to the injustices seen by migrant workers across the world. Employers of foreign workers may withhold wages or force workers to live in poor conditions. Due to these abuses, the H-2 visa program has been compared to legal slavery.

Florida is one of the largest employers for the H-2A program, with almost 9,000 workers in 2011. Florida’s citrus industry employs many of these workers, and the citrus industry is currently in crisis. A new affliction called citrus greening is destroying Florida citrus. Many growers have hired H-2A workers for their groves, but as greening progresses, farmers end up having employees with no work to do, leaving those workers without any income. Until the industry is able to gain control of greening, the H-2A program no longer works for guest workers.

Florida’s Citrus Industry

Florida is the largest US orange producer, accounting for 765,000 jobs and about $910 billion annually. Guest workers make up almost 80% of the industry’s employees and are used in Florida for several reasons:

  1. Guest workers are a stable work force since they can only work for the employer who sponsored their visa;
  2. Guest workers are more affordable, because employers can financially abuse their workers, who are unlikely to fight back because they are afraid of being deported. H-2A workers are promised the highest applicable wages in their location, but abuses abound because employers know that their guest workers are unlikely to complain or report the employers due to fear of deportation;
  3. Citrus picking is physically demanding and exhausting;
  4. Citrus groves are in rural areas , making transportation costs prohibitive, and the relative isolation may be difficult for those with families. These factors combined explain why domestic workers are not interested in those jobs and why the citrus industry is largely composed of H-2A guest workers.

Citrus is important to Florida, both economically and culturally—the state license plate even has an orange on it, and citrus greening has had a devastating impact on the industry. In 2015, the orange crop produced was the lowest in 50 years. There was a 75% decrease in citrus production in 10 years: from 242 boxes in 2005 to 74 million in 2015. There was a 25% decline just from 2014 to 2015: from 104.6 million boxes to 74 million. After a decade of research and $176 million in funding, there is still no cure for citrus greening.

This means lost revenue and jobs. There has been an average of $331 million lost annually from 2006 to 2011. Further, 41,284 jobs were lost over that five-year timeframe, with an average of 8,257 jobs permanently lost per year.  As citrus greening rapidly and dramatically affects citrus, farmers are struggling with employing a proper number of H-2A workers.

H-2A Visa Program

In 2011, the U.S. issued 55,000 H-2A visas, where workers are recruited in their home countries by contractors for a large fee. To protect workers from abuse, there are some protections in place:

  1. Employers must pay guest workers the highest of all the applicable wages, such as the higher of the state or federal minimum wage;
  2. Employers must give the employees 75% of the work hours stated in the contract, and pay the employees for those hours, even if the employer scannot provide enough hours;
  3. Employees must receive a written employment contract in a language understood by the employees;
  4. Employees are entitled to food, housing, and transportation.

Even with these protections, there are still abuses. There is minimal oversight, so employers can get away with not paying their employees. Employers may blame the recruiters in the workers’ home country for wage theft. There is also the added problem of citrus greening where employers may want to pay their employees, but are not able to pay them. If there are not oranges to pick, then there is no money to be made. Additionally, employers will threaten their guest workers with deportation if any employee reports them, so there are very few recourse options available for the workers. In order to help guest workers who are stuck with one employer, there are some changes that can be made to the program.

Problems and Solutions

            While researchers continue to search for a citrus greening cure, there are some ways to change the H-2A program, at both the employer level and the state level. At the employer level, we can:

  1. Bar employers with wage violations from the program.

Currently, if an employer violated wage requirements, they are only banned from the program for no more than three years. Penalties are very light (maximum $1,631 per violation, and maximum $5,491 for willful violation), so it is economical for employers to roll the dice and hope to not get caught. To protect workers, employers should be barred a minimum of three years, in addition to penalties plus back wages. If the employer is found to have violated wage requirements again, they should be permanently banned (plus paying penalties and back wages).

For employers affected by citrus greening, penalties should be lighter as the situation is out of their control. For the first violation, employers should be banned a year, so that they can try to understand how many employees they need for the next harvest. If there is a second violation, the employer should be banned from the program until they show three years of consistent crop growth. This shows the employer is able to determine the size of the harvest for next year and hire the appropriate number of employees.

  1. Allow guest workers to apply for the program directly.

Since employers hide behind contractors claiming the contractor is responsible for paying the employee, it is best to cut out the contractors and employers from the application process completely. Guest workers will not arrive in debt to the recruiters, and employees will not have to work with the fear of deportation. We should allow H-2A workers to apply to work in a specific agricultural industry in a specific area and then have employers apply for guest workers generally—not sponsor particular employees.

To assist with oversight, employers must give the government a copy of the employment contract stating the required hours and also have time sheets submitted directly to the government. Paychecks should be paid through the government—the employer sends the money to the government, then the government sends the money to the employee. This way, there is someone monitoring the process and ensuring that the employer is meeting requirements.

  1. Permit guest workers to work for other employers.

Since H-2A workers are required to stay with their sponsors, one way to ease the effects of citrus greening is to create transferable visas. Communication would be needed among agricultural employers to shift employees to farms where more employees are needed, or to employers who are in the process of hiring H-2A employees but have not finalized the visas. If there are no agricultural positions available, H-2A workers should be allowed to terminate their visas early or move to non-agricultural work.

To not disadvantage domestic workers, employers should have to pay the H-2A workers the same rate they would domestic workers. The H-2A workers should be allowed to work in non-agricultural work only after the position has been vacant for a specific period of time.

Because citrus greening is a Florida issue, Florida understands the needs of citrus growers and guest workers. Florida should be allowed to alter the program at the state level. Possible solutions include:

(A) A State-Federal oversight partnership.

More oversight is needed for the H-2A program to ensure that workers are being paid. As the federal government is not doing much oversight, Florida should work with the federal government to make sure that employers are playing by the rules. It is also in Florida’s interest to make sure that the workers are being paid properly. When workers have more money, they would be more likely to spend the money locally, stimulating the economy.

While this oversight will cost Florida money, one way to raise revenue is to have the employers pay a fee for every worker requested, which will also disincentivize employers from applying for too many guest workers. Bringing state monitors on the ground level will help employers, as state monitors will be able to see which farmers have too many employees, and possibly help shift those employees to another employer who is in need.

(B) An employer-bond requirement.

To ensure that guest workers are paid at least some amount of money, employers should post a bond to the state before hiring guest workers. If the employer is stealing wages, there is a pot of money that the state can use to pay wages. While the bond may not be large enough to pay 100% of the money owed, it is a way to ensure that the employee will receive some compensation.

Conclusion

Florida has been battling citrus greening for over a decade, and it is time for action. Until there is a cure for citrus greening, we cannot allow H-2A workers to be chained to employers who do not pay the workers. Ideally, the solutions that I have presented will work best if they are used in conjunction with one another, but adopting even one of these changes will benefit guest workers. We have allowed these guest workers get into our country with the promise of employment and guaranteed wages, and it is time that we improve the H-2A program to ensure these promises are kept.

*The front picture is from Dan Charles, Guest Workers, Legal Yet Not Quite Free, Pick Florida’s Oranges, NATIONAL PUBLIC RADIO, http://www.npr.org/sections/thesalt/2016/01/28/464453958/guest-workers-legal-yet-not-quite-free-pick-floridas-oranges. (The Editorial Board)

Sami L. Alsawaf is originally from Melbourne, Florida. She graduated from the University of Florida in 2014 with degrees in Political Science and Psychology, and will graduate from William & Mary Law School in 2017. Sami serves as the President of the Women’s Law Society and is an Articles Editor for the William & Mary Journal of Women and the Law. After graduation, Sami hopes to pursue a career as a prosecutor, focusing on victims of sexual assault and domestic violence.