Georgia farms settling lawsuits involving immigrant workers

Fiscal years/H-2A positions certified by U.S. Labor Department for Georgia/Nation

2011/6,793/77,246

2012/8,227/85,248

2013/9,268/98,813

Top five countries of origin for H-2A visas for fiscal year 2012

Mexico, 61,324

South Africa, 1,122

Peru, 993

Guatemala, 702

Nicaragua, 260

Sources: U.S. Labor Department, U.S. State Department

Two large Georgia farms agreed to pay their former laborers tens of thousands of dollars in recent months to settle federal lawsuits alleging they cheated them out of wages and discriminated against them in favor of workers from Mexico.

At the heart of the lawsuits is a federal guest worker program with a troubled history in Georgia’s $71.1 billion agricultural industry, the state’s largest. Two other large Georgia farms are facing similar federal lawsuits involving the H-2A program, which allows the hiring of foreign laborers to work temporarily in jobs such as picking produce. One of them is now seeking a settlement. And a fifth agreed to pay $500,000 to its workers and their attorneys to settle a federal complaint two years ago.

Critics say the H-2A program displaces U.S. workers and exploits foreign laborers. Georgia farmers don’t like the program much either, complaining it is full of red tape that makes them vulnerable to frivolous lawsuits.

Observers say the answer is to scrap — or at least revamp — the program. The American Farm Bureau Federation and the Georgia Farm Bureau have come out in support of bipartisan Senate legislation that would replace the H-2A program with a new visa program and strengthen protections for farmworkers. But that legislation is now stalled amid opposition from conservatives. A separate GOP-sponsored measure has stalled in the House.

Georgia has grown more dependent on the H-2A program since 2011, when the state enacted a sweeping law to crack down on illegal immigration. Many Hispanic migrant workers fled Georgia after Republican Gov. Nathan Deal signed House Bill 87 into law.

In the fiscal year ending in September, the federal government certified 9,268 farm positions in Georgia for foreign guest workers, up 36 percent from fiscal year 2011. Last year, Georgia ranked third among states for these positions, behind North Carolina and Florida.

Suit: Job conditions

better for Mexicans

Kathern Bentley of Moultrie is among a group of South Georgia farmworkers who filed suit against Norman Park-based J&R Baker Farms in 2012. They alleged the vegetable farm discriminated against them by making them meet production standards not required for the farm’s Mexican workers, who were brought here through the H-2A program. The plaintiffs also alleged the farm ultimately fired them in favor of retaining the Mexicans laborers.

The farm sent the Mexicans to the fields first, giving them more time to work there and make money, Bentley said. The farm also offered better working conditions for the Mexicans by supplying them with empty buckets and sending a tractor out to collect the squash they picked, Bentley said. Bentley said she was fired – three days after she started — for falling one bucket short of the farm’s production standards.

“All I wanted to do was work and make some money, and they were more or less making it so hard on us,” said Bentley, who received a $900 judgment in the case. “It was just terrible.”

This month, J&R Baker Farms agreed to settle the case by paying $21,200 to 11 other former laborers, court records show. The company denied the plaintiffs’ allegations but decided to settle to avoid additional legal costs, said its attorney, Larry Stine.

Stine criticized the Georgia Legal Services Program, a nonprofit law firm that represented the plaintiffs in the Baker lawsuit and several other cases involving H-2A workers.

“They litigate these cases, in my opinion, far out of proportion” to the amounts of wages involved, Stine said. “You will see an enormous amount of pleadings in a case that you typically wouldn’t see” for these dollar amounts.

Dawson Morton, a senior staff attorney with Georgia Legal Services who represented the plaintiffs against Baker, dismissed Stine’s criticism.

“When there is such a strong employer preference for the (H-2A workers) over the domestic workers,” he said, “it leads to unlawful discrimination like we have alleged in these cases.”

4 agencies play parts

in worker program

Farmers complain it sometimes takes too long to get approvals for their guest workers, making them arrive too late to harvest all their crops. They say part of the problem is that four government agencies are involved in the process: the state and federal Labor Departments, the U.S. State Department and U.S. Citizenship and Immigration Services.

To hire temporary foreign workers through the H-2A program, farmers must first demonstrate there are not enough U.S. workers who are “qualified and available” to do the work. They must also show that employing the H-2A workers won’t adversely affect the wages and working conditions of similarly employed U.S. workers.

The vast majority of H-2A visas are issued to Mexicans, federal records show. They may stay in the U.S. for up to three years. And their employers must pay them at least the highest of various wage rates listed in federal regulations and cover their travel and housing costs.

In November, Cobbtown-based Plantation Sweets and a pair of its labor contractors agreed to settle federal lawsuits brought by Mexican H-2A workers. The workers alleged the onion and corn farm and the labor contractors underpaid them. The farm denied wrongdoing. To avoid additional court costs, the farm agreed to pay the plaintiffs $25,200. The plaintiffs also received judgments against the farm’s labor contractors, totaling in the tens of thousands of dollars.

Cirilo Martinez Garcia, a Mexican national, was among the former H-2A workers who received a settlement from Plantation Sweets. He said he ended up in debt after not being reimbursed for his trip to the U.S. and getting paid just 75 cents for each box of corn he picked. He said he was originally told he would be paid $9.12 an hour.

“We were paid very little, and I was able to save very little when I was working there,” Garcia said in Spanish as his attorney translated for him.

Meanwhile, more than a dozen U.S. citizens are suing a large Vidalia onion farm in federal court, alleging the Georgia grower underpaid them and offered higher wages to H-2A workers. The plaintiffs are suing Lyons-based Stanley Farms, seeking unpaid wages, attorneys’ fees and court costs. The plaintiffs are also alleging Stanley Farms transported them in unsafe vehicles and required them to pay for the tools they used to harvest the onions. Stanley Farms, which has denied the allegations, is seeking to settle the case, Stine said.

A separate federal lawsuit is pending against Hendrix Produce, a vegetable farm in Metter, and its labor contractor. In the suit, Mexican H-2A guest workers allege the farm underpaid them. Hendrix has denied the allegations.

Proposal hits

snag in Congress

Georgia has a long history of problems with the H-2A program. In 2012, for example, a large South Georgia vegetable farm agreed to pay $500,000 to a group of American laborers and their attorneys to resolve an Equal Employment Opportunity Commission lawsuit. The lawsuit alleged Growers/Southern Valley Fruit and Vegetable Inc. discriminated against the U.S. laborers and fired them so it could replace them with Mexican guest workers. The farm also fired black American workers because of their race and national origin, the EEOC said in its complaint.

Last year, the U.S. Senate passed legislation on a bipartisan vote that would replace H-2A with a new visa program. The new program would allow the workers to leave their jobs and go work for another employer. The employers would have to attempt to recruit U.S. workers before they could hire the visa workers. And the visa workers would be able to stay here for up to three years, with the option of renewing their visas for another three years. They would also be able to apply for permanent residency.

But that legislation has halted in Congress amid Republican opposition to other provisions in the bill, including one that would create a path to citizenship for immigrants living illegally in the U.S.

Inaction in Congress has left Georgia farmers in a tough spot, according to the farming industry. The H-2A program is cumbersome, the industry said, but many farmers have no other option because they can’t find enough domestic laborers willing to do strenuous work in the fields.

“If we had domestic workers that would do the work or could do the work and were productive,” said Charles Hall, executive director of the Georgia Fruit and Vegetable Growers Association, “then our growers would not be using H-2A.”