Report: Government Program to Protect Farmworkers Failing
Wednesday, March 15, 2023
By Sky Chadde and Johnathan Heddinger for Investigate Midwest, with support from the Pulitzer Center on Crisis Reporting.
Broadcast version by Mark Richardson for Illinois News Connection reporting for Investigate Midwest-Public News Service Collaboration.
In early 2019 in Illinois, a farmworker, his wife and his son lived in a moldy house. Attempting to keep the winter cold at bay, he'd spray-foamed the windows shut. The toilet often malfunctioned. Unlike most farmworker housing, it hadn't been inspected - the employer hadn't registered it with the state.
But the man had another option. He complained to a state employee whose job is to advocate for farmworkers' rights. A crucial component of the advocate's job is visiting fields and housing and forwarding complaints to law enforcement.
Several farmworkers a week were contacted through this outreach. Between 2018 and 2020, Illinois forwarded 10 complaints - ranging from being sprayed twice by pesticides to illegally garnishing wages for medical treatment - to authorities. For example, once the father in the moldy house complained, the state employee informed the U.S. Department of Labor.
However, when farmworkers likely needed this outreach most, Illinois stopped delivering it.
When COVID-19 hit, Illinois barred the outreach workers from traveling and assigned some to other duties, according to state and federal documents. Often living in crowded housing, farmworkers were particularly susceptible to COVID-19. Between the pandemic's first summer and summer 2022, the state contacted zero farmworkers. The state recorded one complaint.
The outreach workers in Illinois are part of a federal and state partnership known as the Monitor Advocate System. U.S. Department of Labor officials oversee state counterparts who are supposed to ensure their states protect farmworkers from unsafe housing, wage theft and other abuses. Outreach is only part of the system's duties, but it's an essential element.
A nationwide problem
The failings in Illinois echo across the country, according to internal program documents obtained by Investigate Midwest, and other state and federal records.
* The pandemic either impaired or completely shut down required outreach to farmworkers. States are supposed to have full-time outreach staff during harvest season. Personnel at some local job centers - mainly known for providing career counseling and job referrals - also chip in.
But in the pandemic's first years, some states - including Illinois, Ohio and Kansas - closed job centers or reassigned staff. Across the country, the number of contacts with farmworkers fell, according to the system's latest annual report.
Meanwhile, more than 90,000 farmworkers contracted the virus, and at least 100 died during the pandemic, according to tracking by the Food and Environmental Reporting Network, a nonprofit newsroom.
* The monitor advocate system has convulsed with turnover in recent years. The system has about 60 positions: a national monitor advocate, six DOL officials overseeing states in different regions, an advocate in each state and some support staff. Since 2020, 37 people have cycled through the system, according to Investigate Midwest's review of staff directories.
Since 2020, four states, including Illinois, have had three different people employed in the monitor advocate role. Some who technically served in the role did not perform its duties full-time. For instance, between 2016 and 2018, Iowa's monitor advocate spent less than half of her time performing monitoring duties. (The state said this is currently not the case.)
Janie Claytor-Woodson, the longtime state monitor advocate for West Virginia who retired in 2020, said many monitor advocates she worked with were dedicated and caring individuals who had farmworkers' best interests in mind.
"Most of the people I worked with were outstanding. They took their jobs to heart," she said. But, she added, "You can't just put somebody in that seat. You got to have somebody who has some interest or background (with farmworkers). Otherwise, the program's going to suffer."
* Even before COVID-19, some states did not perform the required outreach to farmworkers. The year before the pandemic started, 16 states failed to do so, according to a recent annual report. The annual reports note little contact with farmworkers generally means fewer complaints.
Yu-Mon "Luis" Chang, Connecticut's state monitor advocate, said in a video for the National Center for Farmworker Health that frequent visits are essential to building trust with farmworkers. (He did not return repeated requests for an interview.)
"If you're just showing up once every two years to the farm, you're not going to gain the trust of the workers," he said. "But if they see you out there all the time, and they start talking to you, they'll get comfortable enough to disclose something that may be bothering them. That's the key."
In a statement to Investigate Midwest, the labor department said it disagreed with any characterization that the program wasn't successful. The statement said the oversight the monitor advocate system provides focuses on reviewing states' protections of farmworkers, the functionality of their complaint process and their compliance with regulations and directives: "This system is successful when Monitor Advocates effectively perform their specific duties," the statement reads.
On a national level, several of the performance indicators the labor department uses to determine the program's success are being met. But, the agency acknowledged, "state-level data shows that not all (local job centers) are meeting all measures."
The system's most recent annual report notes weekly contacts increased after the pandemic's first year. However, it reads, "it is critical to understand that the pre-pandemic contact rate may not have been adequate."
When asked what kind of accountability existed for states not meeting the required standards, the labor department said, "Continued non-compliance can result in (the agency) formally noting deficiencies in a monitoring report and requiring a corrective action plan. Most states can resolve compliance issues through these steps."
In more extreme cases, funding can be withheld, the agency said.
But, the labor department said, it was "not aware" of an instance where funding related to farmworker services was withheld.
For example, Indiana has been cited repeatedly since 2009 for inadequate outreach staff, according to a copy of the labor department's corrective action plan for the state. Indiana said it is "currently in compliance" with staffing regulations.
The Illinois Department of Employment Security, which houses Illinois's part of the monitor advocate system, originally said it would answer Investigate Midwest's questions about its role in the system and its decisions during the pandemic. It did not respond prior to publication.
The monitor advocate system was in the headlines recently because of a possible connection between its representative in Georgia and a human trafficking operation, according to reporting by USA TODAY.
The operation forced farmworkers to dig for onions with their bare hands, and to live in housing with limited plumbing and no safe water, according to the U.S. Department of Justice. According to testimony related to the case, the traffickers paid off a state official who inspected and approved farmworker housing.
The person who inspected housing was the state monitor advocate for Georgia, who retired in the wake of the DOJ's investigation. The advocate's sister was indicted in the DOJ's case, and several of his family members owned companies that employed farmworkers, USA TODAY reported.
The Georgia Department of Labor did not respond to requests for comment.
Chronic issues in farmworker housing
In an ongoing series on farmworker housing, Investigate Midwest is examining chronic issues and the systems created to uphold farmworker rights. Ensuring safe living conditions is not the Monitor Advocate System's only responsibility, but protecting farmworkers from substandard housing - an entrenched problem - has been part of its mission since its start.
Across the country, examples of poor housing abound. In Iowa, authorities have found housing with holes in the wall and floor. In Missouri, farmworkers were forced to live in an old jail. One farmworker complained to an advocacy group of living in an "iron chicken coop" with bunk beds.
"Farmworkers are one of the worst housed groups in the United States," said Lance George, director of research and information at the Housing Assistance Council, which studied the issue in 2002. "This is a group in the shadows."
Oversight and enforcement need to improve for conditions to change, said Antonio De Loera-Brust, communications director for United Farm Workers, a California labor union.
"There's one law on the books," he said. "There's another law in the fields."
Research, government data and previous reporting show farmworkers are also vulnerable to labor abuses, human trafficking and legal violations - necessitating a government position like the monitor advocate.
When one advocacy organization, Centro de Los Derechos del Migrante, conducted a survey of farmworkers recently, 100% of respondents said they faced at least one serious legal violation.
Matt Boles, an attorney with the Southern Poverty Law Center's Southeast Immigrant Freedom Initiative, represents five clients on H-2A visas who worked on farms connected to the Georgia trafficking case. They've applied to stay in the U.S. on T visas, which are for victims of human trafficking.
"People just have so much fear," he said. "They think, 'If I say something or I speak out, however bad I'm treated now or however bad the conditions are, it may actually then (get) worse.'"
Just last year brought other examples of farmworkers being trafficked. In January 2022, a South Carolina grand jury indicted two people on labor trafficking charges involving the H-2A program. In April, a Florida woman pleaded guilty to a multi-state racketeering conspiracy involving trafficking farmworkers. In December, a farm labor contractor was sentenced to almost 10 years in prison for leading a multi-state conspiracy to traffic Mexican seasonal farmworkers.
Stolen wages is also a chronic issue. The DOL has recovered more than $82 million in back wages due to farmworkers since 2000. In the most recent fiscal year, the DOL assessed a record $7.9 million in fines.
The Richey order
The monitor advocate system grew from the complaints of farmworkers about 50 years ago.
Job centers, created in the depths of the Great Depression, were supposed to facilitate the same career prospects for all workers. However, the centers referred farmworkers to employers that stole their wages and provided unsafe housing, the workers alleged.
In 1974, Charles R. Richey, a federal judge in Washington, D.C., ruled in the case. (More famously, he ruled the tapes Richard Nixon created while president were not personal records.) Finding the DOL infringed the farmworkers' rights, he laid out the federal and state partnership that would become the monitor advocate system.
One element essential to the system's success is outreach. Many farmworkers do not walk through the job centers' doors.
Under the Richey order, states are required to provide the same services to farmworkers as non-farmworkers. This means states are supposed to employ dedicated outreach staff who alert farmworkers to the resources available to them.
Outreach staffers are also supposed to document any apparent violations they see while visiting farmworkers and send any complaints to agencies that can investigate, usually the DOL.
But many of the issues Richey identified decades ago continue to vex states, according to internal reviews and corrective action plans.
The order stipulated states should hire bilingual staff and, if possible, members of the farmworker community. States have largely failed.
In Illinois, for instance, five offices are located near large populations of farmworkers. Only three employ bilingual staff, and just one employs someone with a farmworker background, state records show.
The judge also required states to employ enough staff to conduct "random field checks ... to determine whether wages, working and housing conditions" do not violate state and federal laws, Richey wrote.
In recent years, staffing shortages have bedeviled states.
During Missouri's peak harvesting season in 2019, about 9,000 farmworkers were in the state; Missouri had no assigned outreach staff. (It has since hired full-time outreach staff.) The same year, Nebraska outreach staff "did not spend the majority of (their) time in the field." In 2021, Indiana's one outreach staffer split time with other duties during peak harvesting time.
Missouri and Indiana did not return requests for comment. A 2021 labor department review of services in Nebraska found no issues, and a state spokesperson said Nebraska, as a state with few farmworkers, is not required to have full-time outreach staff most of the year. Indiana said it is now compliant with staffing regulations.
Seeing the individual
Claytor-Woodson and her colleague walked through a tin shed that housed giant tractors. At the back, a man who worked for a Florida company showed them where the farmworkers would would sleep. The "very crude" beds, with no mattresses, were constructed with 2x4s and chicken wire, she recalled recently.
When she saw dead rats and their droppings, she faced her colleague.
"Are you kidding me?" she thought.
Most farmworker housing she inspected proved satisfactory, she said. But no one should live in the "awful" tin shed, she decided.
Though not the state monitor advocate at the time of this inspection, Claytor-Woodson, now 75, served in the role for more than a decade before her retirement in 2020. Previously, she was a child welfare administrator in California. She approached both duties the same way, she said.
She told her employees who removed kids from dangerous situations to always act in the child's interest, she said.
"I don't care who the mama is, who the daddy is, a political leader, whatever, none of that stuff - your job is to make sure that that child is safe," she said. "That's the way I approached" the monitor advocate role.
She'd meet farmworkers early in the morning, at lunch, or late at night to not interfere with their work. With a translator in tow, she'd let them know that the employer knew she was there and that she'd be asking questions. In small groups away from the employer, she'd ask them where they were from, whether they had kids, how they came to the job - "I just wanted to see who they were as individuals," she said.
She also observed body language, she said, to understand whether she needed to engage one-on-one.
Once, she said, a young farmworker told her about his father. Also a farmworker, he was injured on the job in Ohio. The injuries prevented him from working, and his employer refused to pay his medical bills, Claytor-Woodson remembered.
"They sent him home (to Mexico) with this enormous hospital bill," she said. The "father was worried to death that somebody was going to put him in jail."
She worked with Ohio's state monitor advocate to have a local charity to pay for his medical care. When the young farmworker returned the next season, he sought her out and thanked her.
While turnover has plagued the system, some monitor advocates have been in their position for years. Olga Ruiz, who did not respond to questions from Investigate Midwest, has worked for the system for more than 30 years in Colorado. Her state is often cited in the system's annual reports as a success story.
Since Claytor-Woodson retired, two people in West Virginia have held the monitor advocate position, staff listings show. An email to Steven Sansom, who was most recently listed as working in the position, bounced back.
In her experience, Claytor-Woodson said, many monitor advocates she worked with wanted to make a difference. This includes Laura Tramontana, now the National Monitor Advocate, charged with marshaling the DOL's resources to aid farmworkers. Tramontana did not respond to an interview request to her government email.
But Claytor-Woodson also struggled with some of her colleagues' apathy toward farmworkers.
"You have people who see a benefit of getting out of the office," she said, "but not necessarily in providing the services that the employer or the farmworkers might require or need."
Creating a 'baseline' in Illinois
In May 2021, Myriam Diaz Rutland video-conferenced, through a malfunctioning camera, with state employees at a job center in Mt. Vernon.
The rural town in southern Illinois sits within an hours' drive in either direction of six migrant labor camps. As many as 200 workers cycle through the area each year, according to state records.
Each year, state monitor advocates are supposed to review how job centers provide services to farmworkers, including the quality and amount of outreach they do. Because Illinois had failed to keep the role filled, Diaz Rutland's review, held over the internet due to COVID-19, was the first one in years.
Her notes show Illinois's program was essentially starting from scratch.
"This period of monitoring is being established as a 'baseline,'" she wrote, according to records Investigate Midwest obtained through a public records request. "The State Monitor Advocate has been vacant in an official capacity for several years leading up to this review."
The last review, in fact, was performed in 2018 by Diaz Rutland, during her first stint as the state monitor advocate.
She didn't return requests for an interview. When contacted for a previous story about Illinois farmworkers, she'd directed Investigate Midwest to the spokesperson for the Illinois Department of Employment Security.
Diaz Rutland went through her review:
- No farmworkers had received any services in the past year, let alone been contacted through outreach.
- The office had one bilingual employee who was not trained to assist farmworkers.
- The office had received no training on how to intake complaints from farmworkers and get them to the proper authorities.
When she finished, she concluded the office was "not equipped" to ensure farmworkers were protected.
Mt. Vernon had company. Four of the five offices near known populations of farmworkers did not meet the requirements of the monitor advocate system, according to state records.
In response, the Mt. Vernon office manager said she "should not be held accountable" for how the office handled farmworker outreach before she took over. She said the office would begin conducting outreach when the state allowed.
About a month after finishing the reviews, Diaz Rutland vacated the position, according to federal records. She remains with the employment security agency, and it's unclear how or why she was reassigned.
The change left Illinois, in the middle of peak harvest season, with no federally-required monitor advocate. As the state transitioned to a new hire - its third since 2020 - no one reviewed how the state protected farmworkers last year.
Sky Chadde and Johnathan Heddinger wrote this article for the Investigate Midwest.
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