The U.S. Government’s Temporary Agricultural Workers program, also known as H-2A, allows employers to bring foreign workers to the US when there aren’t enough local workers to meet demand.
The law was created to fill seasonal agricultural jobs, and it limits the maximum period of stay to three years.
In late May, California Rural Legal Assistance (CRLA) filed a lawsuit against a Central Coast agricultural employer on behalf of two H-2A workers.
The lawsuit filed in Santa Barbara County Superior Court said Mixtepec Farming from Santa Maria violated several of the program’s regulations.
“This is essentially a small grower that was housing these particular employees in their home but they participated in the H-2A program and with that they were required to follow the rules of the H-2A program in order to get these additional workers that they claimed that they need,” Directing Attorney for CRLA in Santa Maria Corrie Arellano said.
She said the guest workers accuse Mixtepec Farming of charging them for fees such as housing and transportation and also failing to pay them minimum wages and overtime as required by law.
The most-recent labor numbers show Santa Maria was the top city to use H-2A workers in California, according to federal numbers from 2014.
The Employment Development Department said there were 1,909 certified H-2A workers in Santa Barbara and San Luis Obispo Counties combined, at last count.
“There has been an uptick in issues that come our way in terms of H-2A,” Regional Administrator for the US Department of Labor Wage & Hour Division Ruben Rosalez said.
He said more cases like the one filed by CRLA have occurred as the use of the program has grown.
“The use of H-2A has increased, as you’re probably aware, in the Western region. More and more industries and crops are starting to use it. As a result, there is a corresponding need for enforcement and we’re starting to find issues,” Rosalez said.
The increase in claims of abuse of the H-2A program might not have a simple response.
The program itself is quite complex, according to Rosalez.
That complexity is in part due to the hurdles employers must go through in order to successfully hire guest workers.
The program has been around for years, but it wasn’t until two years ago that the number of requests for H-2A workers increased significantly.
Arellano said employers realize it’s a valuable resource, but not all take into account that it also comes with costs, such as a higher rate of pay and some living expenses.
It’s those farming operations that she’s fighting against.
“It’s advantageous for those employers that want to take advantage of having the H-2A workers here but without having to pay the additional cost,” Arellano said.
Jacqueline Frederick is the lawyer for Mixtepec Farming.
She denies the allegations and said the program’s rules and regulations make it difficult for employers, especially small farming operations like her client.
“I do think there is the potential for a lot of misunderstanding. Even when someone has the best of intention, there may be some technical issue,” Frederick said.
Arellano agrees the law is complicated, but said employers should know what they are getting into.
She plans to educate guest workers about their rights, in an effort to protect them against future abuses.
CRLA filed a similar lawsuit in the U.S. District Court for the Central District of California involving other employers using H-2A workers.