```

[Senate Hearing 110-889]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-889

   ENDING ABUSES AND IMPROVING WORKING CONDITIONS FOR TOMATO WORKERS

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   ON

  EXAMINING ENDING ABUSES AND IMPROVING WORKING CONDITIONS FOR TOMATO 
                                WORKERS

                               __________

                             APRIL 15, 2008

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                 senate

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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

                 Ilyse Schuman, Minority Staff Director

                                  (ii)

                            C O N T E N T S

                               __________

                               STATEMENTS

                        TUESDAY, APRIL 15, 2008

                                                                   Page
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont, 
  opening statement..............................................     1
Kennedy, Hon. Edward M., Chairman, Committee on Health, 
  Education, Labor, and Pensions.................................     1
Durbin, Hon. Richard, a U.S. Senator from the State of Illinois..     5
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio.......     7
Benitez, Lucas, Former Tomato Worker and Co-founder, Coalition of 
  Immokalee Workers, Immokalee, FL...............................     9
    Prepared statement...........................................    11
Frost, Charlie, Detective, Collier County Anti-Trafficking Unit, 
  Naples, FL.....................................................    15
    Prepared statement...........................................    17
Schlosser, Eric, Investigative Reporter, Monterey, CA............    19
    Prepared statement...........................................    20
Bauer, Mary, Director, Immigrant Justice Project, Southern 
  Poverty Law Center, Montgomery, AL.............................    24
    Prepared statement...........................................    25
Brown, Reggie, Executive Vice President, Florida Tomato Growers 
  Exchange, Maitland, FL.........................................    31
    Prepared statement...........................................    33
Reyna, Roy, Farm Manager, Immokalee, FL..........................    37
    Prepared statement...........................................    38

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Letters:
        Law Professors...........................................    56
        Letter from McDonald's USA, LLC..........................    61

                                 (iii)

 

 
   ENDING ABUSES AND IMPROVING WORKING CONDITIONS FOR TOMATO WORKERS

                              ----------                              

                        TUESDAY, APRIL 15, 2008

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:01 a.m., in 
Room SD-430, Dirksen Senate Office Building, Hon. Bernard 
Sanders, presiding.
    Present: Senators Sanders, Kennedy, and Brown.
    Also Present: Senator Durbin.

                  Opening Statement of Senator Sanders

    Senator Sanders. Good morning, and thank you all for being 
here. Please sit down.
    I am going to make a statement in a moment. But first, I 
want to introduce the Chairman of the committee, who was kind 
enough to put this hearing together, and we very much 
appreciate what he is doing today and what he has done for so 
many years to protect the needs of American workers.
    Senator Kennedy.

                  Opening Statement of Senator Kennedy

    The Chairman. Well, good morning. First of all, let me 
thank Senator Sanders for being willing to chair these hearings 
and for all of the good work that he has been doing on this 
issue, as well as many others. He has been a real voice for 
those who need a strong voice on their behalf--working 
families.
    I am very, very personally appreciative of all of his 
leadership as I am for our other colleague, Senator Brown, who 
is an active member of this committee, and has a long history 
of involvement in terms of worker and worker family issues.
    My colleague and friend Dick Durbin, not a member of the 
committee, but nonetheless, a very concerned, active, involved 
friend on this issue. I thank them all, and particularly my 
acting Chair today, Senator Sanders of Vermont.
    A half a century ago, Edward R. Murrow and CBS broadcast a 
documentary exposing the plight of migrant farmworkers in 
Immokalee, FL. Airing shortly after Thanksgiving in 1960, ``A 
Harvest of Shame'' told the story of a neglected and mistreated 
class of Americans who worked long and back-breaking hours to 
put food on the tables of families across the Nation. The story 
shocked the conscience of the Nation and compelled us to speak 
out against these abuses.
    The appalling conditions of farmworkers moved my brother 
President Kennedy and others to crack down on the abuses in the 
infamous Bracero program and end a dark chapter in our Nation's 
history. Later, when Robert Kennedy and I were both Members of 
the Senate's Migratory Labor Committee, we met with a group of 
migrant workers and saw their plight firsthand. Both of us were 
very moved by their plight, inspired by their campaign for 
justice and equality.
    But too little has changed over the years. At today's 
hearing, we will hear about the challenge that still exists for 
migrant farmworkers in Immokalee, FL, and throughout the 
Nation, and how far we have to go to provide genuine fairness 
and justice for this vulnerable workforce. Farmworkers in 
Immokalee and nationwide have some of the hardest jobs in 
America. Yet they often toil for the lowest wages and under the 
most dangerous conditions.
    For the tomato workers in Immokalee, the pay they receive 
hasn't changed in a decade. They head off into the fields 
before the sun rises, and they are still working hard when the 
sun sets. During the harvest, they work 10- to 12-hour days, 7 
days a week with no overtime pay. They each pick as many as 2 
tons of tomatoes per day, and they earn only $40 to $50 dollars 
for this hard day's work.
    Their work can disappear for weeks or months, leaving them 
without the means to support their families. Their working 
conditions are deplorable. But most of them are afraid to 
demand fair treatment because they know they will be fired, 
blacklisted, or turned over to immigration officials. These 
conditions are not limited to Immokalee. They are widespread 
and getting worse.
    Today, we will hear from a courageous campaign to increase 
the wages of tomato workers by a penny a pound. It may not 
sound like much, but for the tomato pickers, it means the 
difference between poverty and decent wages.
    Several major companies, including Yum! Brands and 
McDonald's, have already recognized the urgent need and reached 
agreement with the coalition of Immokalee workers to pay an 
additional penny a pound. They have also adopted a code of 
conduct and agreed to have a third-party monitor whether the 
workers are, in fact, receiving the higher wages.
    I commend these companies for demonstrating strong 
leadership on this issue. They understand that it is good 
business to pay workers fairly even if the law doesn't require 
it.
    Shamefully, however, soon after the Immokalee workers began 
receiving the extra pay, the Florida tomatoes exchange rose up 
and threatened its members with $100,000 fines if they 
continued to make the extra payment to the workers, citing 
unspecified legal concerns. The growers exchange succeeded in 
blocking these increases.
    Twenty-six prominent law professors have told this 
committee in a statement that any such concerns are unfounded. 
Yet the growers continue to stand in the way of fair wages for 
tomato workers. By meeting today, I hope we can ensure that the 
Immokalee workers will receive an extra penny a pound that they 
deserve. We will also explore other widespread problems that 
the farmworkers have faced throughout America.
    As Robert Kennedy said, ``We must help those who have not 
been able to help themselves, whom society has not helped, whom 
the Federal Government has not helped, whom not enough States 
have helped. It is not only our responsibility in Government, 
it is also the responsibility of people who are in management, 
of those who are growers, and those who are employees and have 
some leadership ability. All of us must try to do something to 
rectify the situation, or it is never going to change.''
    As I mentioned, I commend Senator Sanders, Senator Durbin, 
Senator Brown for their leadership on this issue, and I 
particularly thank Senator Sanders for urging the committee to 
hold these hearings. I look forward to the testimony of our 
witnesses.
    Senator Sanders, Senator Durbin that are here, Senator 
Brown, we want all to know that we are not letting up and 
giving in. We are staying after this issue. We want all of 
those, particularly the growers, to understand we are staying 
after this.
    Thank you very much.
    Senator Sanders. Senator Kennedy, thank you very much.
    Let me make a statement. Then I am going to introduce 
Senator Durbin, who has been so active on this issue.
    Today, we are a very long way away from Immokalee, FL, and 
I remember visiting Immokalee mid-January. I think it was 
January 19. I remember, and won't forget, being in the town 
center, a large parking lot, where at 5:30 in the morning, it 
appeared that hundreds and hundreds of workers assembled in 
order to be determined whether or not they would be selected to 
get on a bus and go to work.
    Many of these workers were selected, got on a bus, and went 
to the fields. Some of them were not selected, and we saw them 
after the buses left, sitting there dejectedly, not earning any 
income that day. That is one of the memories that I have, kind 
of the helplessness of people who just were sitting there 
without a day's pay.
    In addition, I had the opportunity when I was in Immokalee 
to talk to a number of the workers. I learned that they make 
approximately 45 cents for every 32-pound bucket of tomatoes 
they pick. That is about a penny and a half per pound. This 
wage has not increased since 1998, and in fact, farmworker 
wages in general, beyond the tomato industry, have actually 
declined by about 65 percent in the last 30 years. So if it was 
bad back then, when Edward R. Murrow wrote about it, it is 
worse in many ways today after adjusting for inflation.
    While I was in Immokalee, I also learned that while it is 
possible under optimum conditions--and we are going to explore 
this issue today--to make as much as $10 to $12 an hour, the 
average hourly wage is far lower than that, and, in fact, when 
you look at the income of the workers over a week or over a 
year, you are looking at abysmally low wages. In fact, most 
workers in the tomato fields earn about, as I understand it, 
$250 a week in income.
    I also learned, and this is an important issue, that there 
is no overtime when workers work more than 8 hours a day or 40 
hours a week. I also learned that there are no benefits. Now, 
working in the tomato fields is dangerous work. You are out in 
the hot sun. People get injuries. But to the best of my 
knowledge, there are no healthcare benefits available to these 
workers.
    What I also observed when I was in Immokalee was just awful 
housing conditions. What I saw were old trailers where some 8 
to 10 workers were living, and they had to have so many people 
in a trailer because it took that much money--and I believe it 
was about $500 per person--to pay for the outrageously high 
rental. What I will say as a former mayor, that in my city of 
Burlington, VT, no housing like that would have been accepted 
or would have been allowed to exist. That is certainly the 
case. They are outrageous housing conditions.
    Let me also quote at this moment from an editorial that 
appeared in the St. Petersburg Times just a few days ago on 
April 11. This is what this editorial said.

          ``Is it really going to take an act of Congress to 
        get Florida's tomato pickers a raise? The men and women 
        who work the fields in Immokalee earn 45 cents on 
        average for every 32-pound bucket of tomatoes 
        harvested. It is a meager wage that has not been raised 
        in more than 20 years. Yet when a couple of fast food 
        giants generously agreed to pay workers an added penny 
        per pound, the Florida Tomato Growers Exchange 
        sabotaged the deal and has refused to negotiate even 
        after congressional leaders offered to be 
        intermediaries.''

    Then the editorial goes on to say,

          ``The truth is that Florida's migrant farm laborers 
        are among the worst-paid workers in the State. They 
        haven't had a piece-rate increase in a generation, and 
        the growers exchange wants to keep it that way even 
        when someone else is willing to foot the bill.''

    That is not me. That is not Senator Kennedy. That is not 
Senator Durbin. That is the St. Petersburg Times.
    Thankfully, due to the dedication and hard work of a number 
of people, including the Coalition of Immokalee Workers, the 
conditions that exist in the Florida tomato fields have begun 
to come to light.
    I am very pleased that Lucas Benitez, a co-founder of the 
coalition, could be with us today to shed even more light on 
the subject. It is a direct result of the CIW's efforts to 
large fast food companies McDonald's and Yum! Brands, whose 
subsidiaries include Taco Bell, Pizza Hut, Kentucky Fried 
Chicken, Long John Silver, and A&W, have agreed to supplement 
the pay of these workers at a rate of an additional penny per 
pound for the tomatoes they buy. McDonald's and Yum! are to be 
commended for their commitment to help alleviate the despicable 
situation in the Florida tomato fields.
    Sadly, however, some other fast food companies, like Burger 
King, continue to resist making a similar move, which, for a 
minimal cost, could almost double the income of the Florida 
tomato workers. In addition, the Florida Tomato Growers 
Exchange has threatened fines of up to $100,000 for any grower 
who cooperates in implementing the penny per pound agreement, 
something that I simply cannot comprehend.
    I have met with Mr. Brown, and we are going to hear from 
him in a few minutes, with the Florida Tomato Growers Exchange, 
about the subject, and we will pursue this. I am glad that he 
is with us here today.
    Unfortunately, this, as Senator Kennedy indicated, is not a 
new problem. Edward R. Murrow talked about it in 1960, but not 
much has changed in all of those years.
    I would just want to say to all of my friends here, all of 
us know that we live in a global economy. I think, 
increasingly, all of us understand that when people eat food, 
they are not only looking at the quality of the food, which is 
important, they are not only wondering about where they get 
their clothing from, they also want to know what are the 
conditions that exist for the workers who produce the food, who 
produce the sneakers, who produce the clothing?
    People are becoming more and more conscious about that. In 
my view, people are saying no to slavery, no to the kind of 
exploitation of workers that we are now seeing from those who 
are producing these tomatoes.
    Last point that I would make--some may say, ``Well, this is 
just a local Immokalee issue. It is a Florida issue.'' No, it 
is not. In America today, we are seeing a race to the bottom. 
The middle class, in many ways, is collapsing. Poverty is 
increasing. What I saw in Immokalee is the bottom in the race 
to the bottom. If we do not lift that bottom up, every worker 
in this country is in danger.
    So it is terribly important that we understand how, in the 
year 2008, slavery can exist in Immokalee and how workers can 
be treated as badly as they are. I very much appreciate all of 
the panelists who are here today. I look forward to a wonderful 
discussion.
    Now let me introduce Senator Durbin, who has played such an 
active role in this process.
    Senator Durbin.

                      Statement of Senator Durbin

    Senator Durbin. Thank you, Senator Sanders, for this 
hearing.
    Senator Kennedy, thank you for your leadership on this, and 
Senator Brown as well.
    This is an important hearing, and I thank all of the 
witnesses who are here. I want to thank especially Mr. 
Schlosser for his article in the New York Times, which brought 
this issue to my attention.
    Mr. Schlosser. Thank you.
    Senator Durbin. I wasn't sensitized to it. I didn't know 
what was going on. But thank goodness for your efforts in 
educating me and a lot of Americans about what we face.
    As Senator Sanders said, this is not a new issue. It is an 
issue that has been around for decades. Edward R. Murrow, the 
legendary CBS analyst, really alerted America to this harvest 
of shame decades ago. Many things have changed since Edward R. 
Murrow's portrayal of this situation, but many things have not.
    Florida's migrant farmworkers still live in shantytowns and 
earn basically the same wages that they earned decades ago. 
They lack labor protection, the same labor protections that 
they needed 50 years ago. Our society continues to depend on 
them to perform tough jobs.
    You will find during the course of this testimony that some 
of our witnesses here will need interpreters and translators to 
be with them. They have come from other countries to do work 
which Americans will not do, cannot do, certainly wouldn't even 
consider doing for the amount of money that they are being 
paid.
    This is a reality that we should face in America, and we 
have to ask some hard questions. It isn't just a matter of fair 
trade coffee at your local Starbucks. We are conscious and 
sensitive of that. It is a matter of whether that tomato on 
your hamburger or the tomatoes chopped up on your taco really 
come from a fair situation where the workers are being treated 
and paid fairly for what they do.
    This is a photo of the Immokalee worker--and I want to call 
attention to it because Mr. Brown, who came to my office and 
met with Senator Sanders and I, told us that these workers are 
paid about $12 an hour. Please join with me in doing the basic 
math. What that worker is carrying is 32 pounds of tomatoes, 
roughly 100 tomatoes. For that bucket of tomatoes, that worker 
is paid 45 cents--40 to 45 cents.
    Just show the next one, please. It isn't just a matter of 
picking them. That worker then has to take--if you will turn to 
the one with the truck, please? That worker has to carry the 
tomatoes, once picked, to the truck to be off-loaded before he 
returns to pick another bucket of tomatoes. Remember, 45 cents 
for 100 tomatoes.
    Mr. Brown is going to tell you these workers make $12 an 
hour. Please join me in doing the math. How many tomatoes do 
you have to pick in 1 hour under those conditions to make $12? 
Almost 3,000 tomatoes. You have to fill that bucket and empty 
that bucket every 2 minutes, every 2 minutes. Is that 
physically possible? I don't think it is.
    Listen to what Senator Sanders says about the workday for 
these people. Many of them don't know if they will get to work 
at all. Then when they come to the fields, they may have to 
wait an hour or more for the dew to come off the tomatoes 
before they can be safely picked and transported. So to suggest 
that these people are making dramatically more, maybe double 
the minimum wage in America is beyond any credible belief. That 
is what we are faced with here.
    Companies of conscience, Yum! and McDonald's, came forward 
and said these workers deserve more. We will pay more. We won't 
ask the growers to pay it. We will pay it. McDonald's will pay 
it. Yum! will pay it for Taco Bell and the other companies that 
they manage. They came forward in what I think is a sensible, 
sensitive response to what is a shameful situation, a penny a 
pound. It meant that that bucket might no longer be worth 45 
cents. It might be worth 75 cents, a dramatic change in wages 
for that poor worker.
    Look at the conditions these workers live in. Show, if you 
will, David. This is the inside of one of the trailers that 
they live in. You can see the conditions. I don't have to say 
much about that. Now take a look at the outside of the 
trailers. As Senator Sanders said, basic migrant workers living 
in pretty rundown conditions. That is fact.
    So what did the Florida tomato growers say when these 
companies of conscience came forward and said we will give you 
an extra penny a pound out of our bottom line? Not only ``no,'' 
they said, ``we will fine you $100,000 if you dare pay them an 
extra penny a pound.'' That is why we are here. That is why we 
are here.
    I don't understand it. We have met with Mr. Brown. I am 
glad he came. I appreciate his being here today. But I think 
the Florida tomato growers ought to step back and take a hard 
look at the position they are in today and many of the 
consumers of tomatoes are in today, and I think it gets to a 
very basic bottom line.
    If Florida tomato growers can't live with workers being 
paid a penny a pound more, then I can live without tomatoes 
from Florida on my hamburger. I think most Americans will say 
the same. We can get by with it, if that is what it takes that 
people working in the United States will be treated humanely 
and decently, that we can consume the products grown in this 
country with a clear conscience. That is what this hearing is 
all about.
    Thank you.
    [Applause.]
    Senator Sanders. Thank you, Senator Durbin.
    Senator Sherrod Brown of Ohio has long been a spokesman for 
American workers.
    Senator Brown.

                       Statement of Senator Brown

    Senator Brown. Thank you, Mr. Chairman.
    Senator Durbin, thank you for always standing up, and 
Senator Kennedy, on the right causes and issues.
    Mr. Schlosser, nice to see you and thank you for teaching 
us so much about workers all over our country and the world and 
how you have brought these issues forward.
    There is not much more to say from what Senators Durbin and 
Kennedy and Sanders said. But I want to tell a little story 
because I think these issues are human rights issues, whether 
it is Tibet, whether it is murder of labor activists in 
Colombia, whether it is the way that workers are treated in 
this country.
    About 2 years ago, my cousin, through her church, was 
working in a homeless shelter near Cleveland. She met a woman 
who was living there, who was in the homeless shelter, who was 
a full-time worker at the Cleveland airport. This woman and her 
co-workers had one of two jobs. They either pushed the 
wheelchair carts up and down the aisles there at the airport in 
the concourses, or they ran those little electric carts that 
they drove.
    These workers were paid less than minimum wage, but they 
were supposed to get up to minimum wage and beyond by tips, 
which many didn't get much in tips because most people don't 
know these people. They figure they work for the airlines. 
These workers, none of these workers work for the airlines. 
They were subcontracted through some private group, and the 
airlines, of course, don't know how much these workers are 
paid.
    But, so many people in our society now have--and I know 
this isn't exactly about the Immokalee workers. But so many 
workers in our society now work in very, very prestigious 
corporations, where the companies pay generally good benefits, 
but these workers are subcontracted. They are cafeteria 
workers. They are pushcart workers at the airport. They are 
people that clean hotels. They are people that are security 
guards at television stations.
    None of these businesses would want to stand the public 
heat of paying their own employees those kinds of sub-minimum 
wages, in some cases, with no benefits, no healthcare, no 
retirement. But they subcontract more and more of these. We are 
seeing this whole class of people in this country that are 
invisible, that are paid way less than a living wage, that 
companies kind of wash their hands of and most of us are 
unaware of.
    I think that this hearing, coupled with the work that so 
many of you on this panel and so many of you in this room are 
doing to raise the visibility of workers that are ignored in 
this society, is so very, very important.
    So, thank you for that.
    Senator Sanders. Thank you, Senator Brown.
    Let me now introduce all of the panelists, and then we are 
going to go back and start with Mr. Benitez.
    Lucas Benitez is a former tomato worker, and he is co-
founder of the Coalition of Immokalee Workers in Immokalee, FL. 
We thank him for being here.
    Charlie Frost is a detective with the Collier County Anti-
Trafficking Unit in Naples, FL. I had the opportunity to meet 
him when I was down there, and thank you very much, Detective 
Frost, for being with us.
    Eric Schlosser, as we have heard, is one of the outstanding 
writers in America. His book ``Fast Food Nation'' was a 
bestseller and opened up many vistas, I think, to people 
understanding what the agricultural economy is about. He is 
from Monterey, CA. We thank Mr. Schlosser for being here.
    Mary Bauer is the Director, Immigrant Justice Project of 
the Southern Poverty Law Center in Montgomery, AL, and we thank 
you very much for being here.
    Reggie Brown is the Executive Vice President of the Florida 
Tomato Growers Exchange in Maitland, FL, and we thank you very 
much for being here.
    And Roy Reyna is a farm manager in Immokalee, FL. Mr. 
Reyna, we thank you very much for being here as well.
    Let us begin the testimony with Mr. Benitez, and what I 
would appreciate is if the panelists could take 5 minutes of 
time. Then if you have a longer statement, please enter it into 
the record. Any size statement is fine, but keep your verbal 
comments to 5 minutes, please.
    The Chairman. Could I just add its a special pleasure to 
have Mr. Benitez here. He was an award recipient of the Robert 
Kennedy Human Rights Award in 2003, as well as many national 
and other international awards. We have a very distinguished 
panel, but we have a very courageous spokesman for workers as 
well on this panel. We thank him.
    Senator Sanders. Thank you, Mr. Kennedy.
    Also I should mention that Julia Perkins is going to be Mr. 
Benitez's translator. Mr. Benitez, the floor is yours.

    STATEMENT OF LUCAS BENITEZ, FORMER TOMATO WORKER AND CO-
     FOUNDER, COALITION OF IMMOKALEE WORKERS, IMMOKALEE, FL

    Mr. Benitez [Interpreted by Julia Perkins]. Buenos dias.
    Good morning. It is a tremendous honor to be here today, 
testifying in front of this committee in such a storied 
institution as the U.S. Senate. I thank you for this once in a 
lifetime opportunity.
    At the same time, of course, the reason I am here today is 
very troubling. The sad fact is that we are here today because 
there is slavery in the fields in the United States in the 21st 
century.
    Exactly 200 years ago, in an act now mostly forgotten in 
the pages of history, the Congress of the United States voted 
to end the importation of slaves into this country. Two hundred 
years ago, the opponents of that law argued that slaves were 
happy with their lot, that they were certainly better off here 
than where they came from, and that agriculture in this country 
would surely collapse if that law were to pass.
    Two hundred years ago, the choice before Congress seemed 
very complicated and controversial. But in the end, they voted 
in favor of human rights and advanced the cause of human 
dignity. Today, 200 years later, I sit before you representing 
the Campaign for Fair Food, a campaign with the objective of 
eliminating modern-day slavery and sweatshop conditions in the 
fields of Florida.
    I work with the Coalition of Immokalee Workers. Our members 
pick tomatoes and oranges during 8 or 9 months of the year and 
then follow the crops up the East Coast during the summer. I 
came to this country from Mexico at the age of 17, and I began 
to work in the picking of oranges and tomatoes.
    The job of picking tomatoes is hard and heavy, dirty and 
dangerous. You run all day long under a burning sun with a 32-
pound bucket on your shoulder, carrying it from the row where 
you are picking to the truck where you dump it out and back, 
and that is when you aren't stooped over to pick tomatoes. At 
the end of the day, the cramps don't even allow you to sleep. 
Not only is your body exhausted, but so is your spirit after 
having to put up with the yelling of your supervisors all day 
long.
    One day, my own experience, I was working, staking 
tomatoes, and I got ahead of the rest of the crew. When I 
stopped for a moment to catch my breath, the boss yelled at me, 
got down from his truck, and threatened to beat me up if I 
didn't continue to work immediately. I was alone in the middle 
of hundreds of acres of fields, miles from any town, and one of 
the reasons for our organizing the coalition was so that no one 
would ever have to feel that alone again.
    For women who work in the fields, in addition to putting up 
with all of this, they have to also endure an environment that 
is charged with sexual harassment. All of this that you hear 
about right now is what happens to workers who are working free 
and not those who are working under forced labor. That is a 
completely different situation.
    Others here will speak more in detail about modern-day 
slavery. But I assure you that the seven cases of modern-day 
slavery that have been uncovered in the fields of Florida are 
just the tip of the iceberg. Countless more workers have 
suffered the humiliation of beatings, rapes, wage theft by 
their bosses over the past 10 years. Today, we are 
investigating more of those cases that haven't been to courts 
yet.
    Truly my job here today, to paint a picture for you of the 
life of a farmworker, is almost impossible. It is so difficult 
because for years farmwork has been the exclusive domain of 
such a small and marginalized portion of the overall U.S. 
population that the vast majority of Americans for several 
generations now have no context in which to understand the 
reality of the work that we do.
    The growers know this well. That is how they have been able 
to make the clear seem complicated and the obvious so 
controversial. Take the issue of wages, for example. 
Incredibly, even this issue that farmworkers are poor has been 
made complicated with the growers' statements that farmworkers 
earn an average of $12.46 an hour.
    To dispute that, I could cite reports from the U.S. 
Department of Labor, an objective source that confirms the 
obvious--that farmworkers are the poorest and least-protected 
workers in this country. Or I could cite the opinion of a 
respected voice in the agriculture industry. He is the editor 
of Produce Business magazine, which says that growers' public 
relations strategy of focusing on an hourly wage can never 
cover up the fact that farmwork is a full-time job with 
irregular hours with which a worker will never be able to get 
his family out of poverty.
    But these arguments are just more words. I want to make 
this issue as clear as possible. So I say to you today, fine, 
we will take it. If Mr. Brown can guarantee that $12.46 an 
hour, backed up by a verifiable system of hours with time 
clocks in the fields and thereby eliminate the antiquated 
system of work by the piece, then we will take it. If they 
already say that they pay $12.46 an hour, there should be no 
problem with actually paying that wage.
    However, unfortunately, I don't think I have to be a 
fortune teller to know what the response will be. If we really 
want to put an end to this eternal debate about farmworkers' 
wages, it is simple. The tomato industry can simply implement a 
surcharge in the same way they have done three other times in 
the last few years to cover other production costs, like diesel 
and pesticides.
    Just like the other surcharges, there will be no impact on 
the market. But in this case, the money won't go to Exxon or to 
Monsanto, but will go directly to the families of the 
farmworkers--or the workers of the poorest workers in this 
country.
    To close, I want to tell you another story from our past. 
In 1997, after a 30-day hunger strike by six of our members, a 
friend of ours asked one of the growers why they weren't 
willing to sit down and talk with us. The grower answered, 
``Let me put it to you like this. The tractor doesn't tell the 
farmer how to run his farm.'' That is how they have always seen 
us, just another tool and nothing more.
    But we aren't alone anymore. Today, there are millions of 
consumers with us, willing to use their buying power to 
eliminate the exploitation behind the food they buy, and a new 
dawn for social responsibility in the agricultural industry is 
on its way. With the help of Congress and with the faith that 
the complicated will be made clear under the purifying light of 
human rights, today, just as it was 200 years ago, we will 
witness the dawn of that new day.
    Thank you, Senator Kennedy, Senator Sanders, Senator Brown, 
Senator Durbin, and thank you to all who are here listening to 
us today.
    [The prepared statement of Mr. Benitez follows:]
                  Prepared Statement of Lucas Benitez
    Good morning. It's a tremendous honor to be here today testifying 
in front of this committee in such a storied institution as the U.S. 
Senate. I must say, my parents never could have dreamed I would be 
sitting at this table in this place, and I thank you for this once in a 
lifetime opportunity. At the same time, of course, the reason I am here 
is very troubling. The sad fact is that we are here today because there 
is slavery in the fields in the United States in the 21st century.
    Exactly 200 years ago, near this very spot, men in your position 
voted to outlaw the importation of slaves into the United States. That 
little known act did not end slavery, but it was an important step 
toward the eventual abolition of that brutal institution.
    At the time, moving to ban the slave trade was a complex, 
controversial and courageous decision. Those who supported the status 
quo argued that most slaves were happy with their lot, that they were 
certainly better off than where they came from, and that the economic 
collapse of U.S. agriculture would surely follow. Fortunately, the 
moral arguments of a growing movement of abolitionists--an alliance of 
consumers with slaves and former slaves--prevailed. Indeed, their 
campaign launched what is today the modern human rights movement.
    Two hundred years later, time has stripped away the complexity and 
controversy surrounding the Act to Prohibit the Importation of Slaves, 
leaving only the now-
obvious moral correctness of Congress' decision to protect and further 
human dignity.
    Two hundred years later, I sit before you representing a new 
movement for fundamental human rights in this country's agricultural 
industry--the Campaign for Fair Food. Our campaign is a growing 
alliance of farmworkers and consumers calling for an end to modern day 
slavery and sweatshop conditions in Florida's fields. And like the 
original abolitionists, we come to you today in the hope that our 
Congress will once again help advance the cause of dignity and human 
rights in this country's fields.
    The organization I helped found, the Coalition of Immokalee 
Workers, is spearheading the Campaign for Fair Food. The CIW is a 
membership organization made up largely of migrant farmworkers, with 
over 4,000 members in Immokalee and around the country. Our town, 
Immokalee, is really more of a labor reserve than a traditional 
community. It is the largest farmworker community in Florida and 
provides labor for the heart of the State's fruit and vegetable 
industry. Our members pick tomatoes and oranges 9 months of the year in 
Florida, and then follow the crops up the East Coast, as far as New 
York, during the summer harvest.
    I myself immigrated to work in U.S. fields at the age of 17. I am 
the second of six children of Mexican peasants from the highlands of 
Guerrero. I came to the United States as a teenager with the hopes that 
through my work in this country I could support my parents and 
siblings. In 1994, I was picking oranges and tomatoes in Immokalee when 
I noticed an invitation taped to a wall in town and began participating 
in evening meetings with a handful of other workers after our long days 
of work. Our small group gathered in a room borrowed from the Our Lady 
of Guadalupe Catholic church to discuss the extreme poverty and brutal 
mistreatment we shared in common in the hope that, by working together, 
we could improve our community and our working conditions.
    One day during that time, when I was hammering the stakes to which 
tomato plants are tied in the fields, one of the bosses started yelling 
at me, got down from his truck, and threatened to beat me up. He 
thought I was not working hard enough, when in fact I had gotten ahead 
of the other workers and was merely catching my breath while they 
caught up to me. There, in the middle of hundreds of acres of fields, 
miles from any town, I faced my boss's threats alone. None of the other 
workers, crippled by the overwhelming climate of fear in the fields, 
dared stand up to him. Holding a tomato stake in my hand, I managed to 
face him down that day, but I was lucky. The new group that I was 
meeting with in the evenings wanted to make sure no one would ever feel 
that alone again in the fields.
    Today, nearly 15 years later, that small group has become a 
nationally respected leader in the fight to end farmworker 
exploitation.
                        ciw anti-slavery efforts
    We did not set out to be an anti-slavery organization. In the 
summer of 1992, however, while CIW members were visiting a labor camp 
in South Carolina, they encountered a young woman, Julia Gabriel, and 
her friends who explained that they had fled another labor camp on an 
isolated farm after a worker there had been shot for wanting to leave. 
Over time, others from her crew told of 12-hour workdays and 7-day work 
weeks, of being awaken at dawn by gunshots instead of alarm clocks, of 
a young man who was beaten for telling other workers that forced labor 
was illegal in the United States, of women sexually assaulted by the 
crew bosses, and of earning no more than $20 a week in wages, once 
``deductions'' for transport to the job, rent, food, and so forth were 
taken out. More than 400 workers suffered this plight.
    After 5 years of the CIW investigating and pressuring the 
Government to act, the young woman who escaped saw her captors 
sentenced to 15 years in Federal prison. Her employers were prosecuted 
on slavery, extortion, and firearms charges, using the same laws passed 
just after the U.S. Civil War prohibiting peonage. Julia Gabriel is now 
a CIW member and winner of the Robert F. Kennedy Human Rights Award for 
her ongoing activism
    But was that case perhaps an anomaly? Was it just ``one bad 
apple,'' as one agricultural industry lobbyist put it when pressed by a 
journalist 10 years ago? Certainly no one in the agricultural industry 
or the corporations that bought the produce Ms. Gabriel and her 
colleagues picked spoke out after the sentencing. Their response was a 
deafening silence. There were no outraged calls for reform, no 
contracts cut--the vegetables kept flowing to the market without so 
much as a hiccup.
    But then our members uncovered another operation, this time just 
outside of Immokalee. That operation was prosecuted on slavery charges 
in 2000. Two bosses were ultimately convicted for holding dozens of 
workers in a trailer deep in the swamp of Southwest Florida and forcing 
them to pick tomatoes for virtually no pay. The manager of the farm 
where they worked--Manley Farms--said he had no idea whatsoever that 
the workers were being held against their will.
    After that case, another. Late one night, we received a call from 
my brother, who worked for a taxi-van service catering to migrant 
farmworkers. ``I called 911 emergency''--he said--``we are being 
attacked by men with guns! They look like bosses!''
    We immediately drove an hour north to Lake Placid, to find a scene 
of blood, broken glass, and terrified workers at a store on the side of 
the highway. This time, the passenger vans had made a scheduled stop to 
pick up workers wanting to leave Lake Placid to go elsewhere--but the 
armed gunmen, crew bosses, didn't want their workers to be free to 
leave. So they held up the passengers at gunpoint, beat the van 
drivers, and pistol-whipped the owner of the van service, splitting his 
head open and leaving him unconscious, saying, ``You're the SOB's who 
are stealing our workers!'' During the years-long investigation of 
those bosses, we had to help terrified workers escape the camp. Those 
workers later testified in Federal court, and again, the crew bosses 
received 15-year sentences on slavery and firearms charges.
    In all of these cases we are speaking of modern-day slavery, in the 
form of debt bondage, different of course from the legally sanctioned 
chattel slavery of the plantation era. Workers caught in this brutal 
trap soon learn they cannot leave until they pay off their debt. 
Employers enforce this system of servitude through violence or threats 
of violence, their power imposed in many cases by armed guards through 
beatings, shootings, and threats of death to families back home.
    When we use the term slavery we confine it to operations that have 
met the high standard of proof necessary to prosecute under Federal 
law--anti-slavery laws based on the 13th Amendment of the U.S. 
Constitution and a new law enacted in 2001, The Trafficking Victims 
Protection Act (TVPA). The TVPA is designed to guarantee that victims' 
human rights are respected. In fact, the first case I spoke of, 
involving Julia, was one of the seminal cases leading to the drafting 
of the new law.
    It is important to understand that, while the cases I've mentioned 
here involve immigrants, that is only because the workforce as a whole 
in Florida is today mostly immigrant. But forced labor pre-dated the 
relatively recent arrival of immigrant workers in Florida's fields. 
Thirty years ago, when the farm labor force was mostly U.S. citizens, a 
significant percentage of the workers were also held in forced labor. 
Citizenship is not the key factor--the drastic imbalance of power 
between workers and employers is. These brutal conditions have existed 
virtually unchanged for many, many decades, independent of the changing 
status of the workers who toil in our fields.
    In fact, our most recent prosecuted case involved an employer 
working a crew in fields in the small rural town of Palatka, FL. That 
boss received 30 years in jail for what the Department of Justice 
called the ``worst form of servitude.'' His wife received 15 years and 
his son 10 years. They recruited homeless U.S. citizens, mostly 
African-American, from homeless shelters, with promises of a roof over 
their heads and a good job. The workers found themselves locked in debt 
in isolated rural labor camps in Florida and the Carolinas, in fear and 
penniless. It's a chilling illustration of how fragile human rights 
truly are, and how they constantly need defending and expanding.
    This too is important to keep firmly in mind: the investigative 
work we do is vital, but it is cleaning up an abuse after it has 
already happened, that is, when it's already too late. Here we have 
workers who've escaped describe the experience as, ``I feel I came out 
of the darkness into the light,'' or ``I came from death back to 
life.'' It is outrageous that anyone has to go through that in this day 
and age, or that we even have to have an Anti-Slavery Campaign at all. 
But there is a way to prevent this from happening in the first place.
                       ciw campaign for fair food
    Eliminating existing slavery operations, while absolutely 
imperative, is nonetheless treating the symptom, not curing the 
disease. So while we of course will continue to investigate and help 
prosecute slavery cases as they arise, we must cure the disease, and 
prevent modern-day slavery from taking root in the first place. To do 
so, we are working together with consumers--in the tradition of the 
abolitionist movement--as allies. As allies fighting together in our 
Campaign for Fair Food, we have arrived today at the threshold of a 
more modern, more humane agricultural industry. But before I explain 
where that campaign stands at this moment, I'd first like to describe a 
bit of the road that has brought us to where we are.
    Workers in Immokalee endure terrible exploitation--and I speak here 
of the majority of farmworkers, those who are free, not held in forced 
labor. In the agricultural industry, ``sweatshop'' conditions prevail, 
what we call ``sweatshops in the fields.'' The conditions are similar 
to those in factories at the turn of the 20th century in the United 
States--subpoverty wages, no benefits (that is, no health insurance, no 
sick leave, no pensions), no right to overtime pay, and no right to 
organize.
    Like sweatshop workers a century ago, workers who pick tomatoes 
today are paid not by the hour but by an antiquated piece rate system--
at an average rate of 45 cents a bucket--a rate which has not risen 
significantly in 30 years. But unlike a factory, there is no roof over 
your head. Rather you work--half the day bent-over, half the day 
running from your row to the truck and back--all day under the broiling 
sun. You're constantly on the move, looking for jobs from farm to farm, 
State to State. You live in trailers or shacks, 10-12 men per trailer, 
with exorbitant rents that can only be met by extreme overcrowding. 
Most workers have no cars, no phones in homes, no heat, no air-
conditioning (in Florida!), none of the amenities taken for granted in 
the United States.
    We began organizing against this grim reality as a few dozen 
workers, and held a general strike of 3,000 workers in 1995, beating 
back a wage cut. In 1997, six CIW members organized a 30-day hunger 
strike, their only demand: dialogue with the growers. Christmas passed, 
and then New Year's. A striker went to the hospital, and still no word. 
The growers' resistance was not so much economic but rather based on a 
refusal to shift how they view their workers. They had a deep-rooted 
aversion to seeing workers as employees instead of as peons or, worse 
still, machine parts. Back then, a friendly businessman told us of how 
he asked one of the growers, ``Why don't you all go down to Immokalee 
and simply talk to the workers? '' The grower responded, ``Because a 
tractor doesn't tell the farmer how to run the farm.''
    In the following years we organized two more general strikes and a 
240-mile march across Florida, and though our strikes brought about the 
first raises in 20 years, it grew increasingly clear that systemic 
change was not going to come from confronting the growers. In response 
to our pressure, growers claimed that they were caught in a ``cost-
price squeeze'' with pressure from their buyers for ever-lower prices 
leaving them unable to raise wages.
    Corporate buyers from the fast-food industry do indeed pool the 
purchasing power of tens of thousands of restaurants to demand the 
lowest possible prices for their produce. That downward pressure on 
prices at the farm gate is translated directly into downward pressure 
on farmworker wages in the fields, and so in this way the major buyers 
of Florida produce are in fact a driving force behind the increasing 
misery of our members. Fast-food profits from farmworker poverty.
    As we came to realize this, we also came to realize that if fast-
food giants can wield buying power to depress wages and working 
conditions, they can also use that power to demand fairer conditions 
and help improve wages. The same mechanism that draws profits to the 
top of the food industry can be reversed to return a tiny part of those 
profits back down the supply chain to those who have been impoverished 
for so long at the bottom of that industry.
    And so the Campaign for Fair Food was born.
    We began our campaign after finding out that Taco Bell, a major 
fast-food chain in the United States, bought its tomatoes from a major 
grower based in Immokalee. A year after first contacting Taco Bell and 
receiving no response, we launched a national boycott campaign. With 
the growing support of students, religious, and labor allies across the 
country, we were able to win that boycott after 4 years, establishing 
three key precedents for fair labor standards in agriculture:

     a penny more per pound to be passed directly on to the 
workers
     a supplier code of conduct establishing fundamental human 
rights in the field, including the first enforceable zero tolerance 
policy against slavery and certain other abuses
     a guaranteed role for workers in drafting, enforcing, and 
monitoring the code in the fields.

    Starting in March 2005, workers harvesting for Taco Bell began 
receiving a check from Yum! Brands for the additional penny-per-pound 
of tomatoes harvested. For two seasons, workers received two checks at 
pay time, one from their employer and a second from Taco Bell for the 
bonus.
    We then turned to McDonald's, and 2 years later, came to an 
agreement that expanded upon the Taco Bell agreement, involving the 
development of an industry-wide supplier code of conduct and a third-
party monitoring system, with worker participation in its 
implementation.
    Soon after, Taco Bell's parent company, Yum! Brands--owner as well 
of Pizza Hut, KFC, and others--extended the agreement to cover all of 
its five brands.
    So with the leadership from both the world's largest restaurant 
system (Yum! Brands) and the world's largest restaurant chain 
(McDonald's), the road to systemic change was laid out, and a 
functioning, workable model was in place. Other corporations serious 
about social responsibility now needed only to agree to participate and 
dramatically improve the lives of the farmworkers picking the tomatoes 
that end up in burgers and sandwiches.
    As the current season began last fall, we stood on the threshold of 
a more humane agricultural industry in Florida--until the tomato 
growers' lobby, the Florida Tomato Growers Exchange, stepped in the 
way. The FTGE imposed a $100,000 fine for any of its members that would 
participate in the Yum! or McDonald's agreements, and as a result, the 
penny per pound payments to workers that began in 2005 have been 
temporarily halted.
    The other Yum! companies were due to initiate the penny-per-pound 
payment in the fall of 2007 as a result of a voluntary agreement by 
Yum! Brands. The McDonald's agreement was also due to begin with the 
fall 2007 picking season.
    Today, however, both agreements are being held hostage by the 
resistance posed by the FTGE. It is important to emphasize that both 
Yum! Brands and McDonalds remain firmly committed to the agreements and 
continue to pay the penny per pound into escrow accounts.
    But it is equally important to understand that already poor workers 
have seen their income cut as a result of the threatened fine.
    The FTGE's threatened fine cannot keep us from continuing to build 
an historic alliance of workers and consumers for slavery-free, 
exploitation-free food, however. That alliance is key to bringing an 
end to the sweatshop conditions that allow slavery to persist, through 
moving more and more corporations to take responsibility for abuses in 
their supply chains. The movement is growing. Consumers don't want to 
partake in the exploitation of farmworkers through their food 
purchases, farmworkers understand the dynamics that underlie their 
poverty, and social responsibility in the U.S. food industry is 
inevitable. It is today not a question of if U.S. agriculture will have 
to face up to this fact, but when.
what are the solutions to the current abusive conditions in the fields?
    I want to put this plainly, farmwork is not like any other job. 
Farmwork is a full-time job with irregular hours. Some weeks you'll 
work overtime. Some weeks you'll work part-time. Some weeks you won't 
work at all. But you have to be available every day, or you won't have 
a job. In the vast majority of picking jobs, you get paid for what you 
pick, not for the hours you work.
    That's why farmworkers are poor. If we want farmwork--one of the 
hottest, most difficult, most dangerous jobs this country has to 
offer--to be less degrading and more dignified, if we want it to be 
stable employment, then we have to raise the pay workers earn when they 
are working, because they only get paid when they are working. That 
means a raise to the piece rate is essential, although it is not all 
that should be required.

    1. The first, best way to raise the now-stagnant piece rate paid to 
tomato pickers is for the Florida Tomato Growers Exchange to impose an 
industry-wide surcharge of one penny per pound of tomatoes to cover the 
increased cost of labor, just as it has done three times in the last 10 
years to account for other production inputs, such as the cost of 
chemicals, fuel and palletization.
    2. In the absence of an industry-wide surcharge, Congress should 
insure that the FTGE is required to eliminate its threat to fine, or 
otherwise retaliate against, willing growers who agree to participate 
in the agreements like those that the CIW has reached with Yum! Brands 
and McDonald's. Those agreements represent a pure market solution to an 
intractable situation that has resisted progress for over 100 years. 
Without artificial and coercive intervention by what is essentially a 
tomato cartel, this market solution will indeed succeed in bringing 
needed change to the agricultural workplace.
    3. Congress should also mandate the development and implementation 
of an accurate time record system, specifically including time clocks 
(as is the case in factories), designed in such a way as to allow the 
workers themselves to determine and demonstrate whether they are 
getting credit for all the time they actually spend in the fields.
    4. Congress should eliminate the farmworker exemption from the 
overtime requirement of the Fair Labor Standards Act.
    5. Congress should require the development of a multi-employer 
system for providing health and other common employee benefits to 
farmworkers, so that the benefits are available as those workers move 
from job to job and employer to employer within the agricultural 
industry.
    6. Congress should examine other ways to protect farmworkers' 
fundamental human rights, including but not limited to a right to 
organize without fear of retaliation, taking into account the unique 
hurdles faced by farmworkers who might seek to exercise those rights.

    Senator Sanders. Thank you very much, Mr. Benitez.
    Charlie Frost is a detective with the Collier County Anti-
Trafficking Unit in Naples, FL. Mr. Frost, thanks very much for 
being with us.

  STATEMENT OF CHARLIE FROST, DETECTIVE, COLLIER COUNTY ANTI-
                  TRAFFICKING UNIT, NAPLES, FL

    Mr. Frost. Thank you, Chairman Kennedy, Senator Sanders, 
and other distinguished members of this committee, for granting 
me the privilege to speak to this committee today.
    On behalf of the Sheriff 's Office of Collier County, I am 
honored to speak to this committee about my experience in 
investigating human trafficking and how this crime against the 
fundamental human rights impacts workers in the agricultural 
field. Prior to the inception of the Trafficking Victims 
Protection Act of 2000, the Sheriff 's Office had been involved 
in some human trafficking investigations.
    In December 2004 through a grant from the Bureau of Justice 
Administration, we began with a full-time investigator and 
full-time victim advocate. In the beginning of 2006, I became 
the investigator for the human trafficking unit. Since then, I 
have worked with the U.S. Attorneys Office, the Civil Rights 
Unit of the Department of Justice, special agents from ICE, 
FBI, and other State and local law enforcement agencies to 
ensure the prosecution of perpetrators of human trafficking 
offenses.
    In addition, we collaborate with nongovernmental 
organizations, such as the Coalition of Immokalee Workers and 
the Florida Freedom Network, to provide assistance to the 
victims. One aspect of my duties is to provide education on the 
subject of human trafficking to law enforcement agencies, 
community service providers, and civic groups throughout the 
area.
    When I first began, there was one common occurrence that 
tied these all together. Most people were unaware that human 
trafficking, which is nothing more than another moniker for 
slavery, was occurring today. Today's form of slavery does not 
bear the overt nature of pre-Civil War slavery, but it is 
nonetheless as heinous and reprehensible than the slavery of 
our Nation's past.
    Today, human trafficking has surreptitiously found its way 
into our society and continues to thrive even as I speak to 
this committee today. As I mentioned earlier, human trafficking 
is nothing less than modern-day slavery. It is the recruitment, 
harboring, transporting, and obtaining of a person for labor or 
services through force, fraud, or coercion, involuntary 
servitude, peonage, and debt bondage.
    Through interviews with victims, I have gained knowledge of 
how traffickers accomplish control of their victims. They use 
threats and actual violence to enforce their will upon them. 
Victims have been beaten or have witnessed beatings of other 
workers who will not relinquish their earnings, disobey the 
traffickers, or have left the camp and been found or have 
attempted to escape. Traffickers create an environment of fear 
meant to control and isolate victims.
    Another method is perpetually accruing debt. Victims have 
incurred debts for housing, food, water, and transportation. In 
one instance, victims have related to me if they were unable to 
work for 1 day, then they would be charged 3 days' worth of 
labor. After a full week of picking tomatoes, they may expect 
to receive only $20 at the end of the week.
    Traffickers use threats against the victim's family in 
their home country to control victims. In one instance, the 
victim ran away. The trafficker's family went to the victim's 
family. They told the family that, ``If he doesn't return, we 
will kill you. Next time you talk to him, you tell him that.'' 
When the victim called home, he returned to the camp.
    In another instance, I had a prosecution that was ready to 
go. The victims called their family, told them what was going 
to happen, and they asked them not to cooperate with us. When I 
asked them why not, they said that they were fearful for their 
lives. The family was fearful for their lives. I asked them 
what that meant. They said, ``Well, the traffickers are the law 
of the village. They have the guns. They make the laws.''
    These are only a few examples of what I have learned during 
my investigations. Traffickers employ these and several other 
methods to exploit victims for the trafficker's own personal 
financial gain. The bottom line is the trafficker is profiting 
from the suffering of other human beings to satisfy their 
greed. Traffickers cultivate this environment of fear to their 
own benefit, and because of the fear, few people are willing to 
identify themselves as victims.
    The State of Florida has been the venue of several cases of 
human trafficking over the past decade. During this time, 
several cases have been brought against traffickers who have 
forced their victims to work in the agricultural fields of 
Florida. One common denominator throughout all of this is that 
traffickers are usually subcontractors of large corporations, 
larger businesses. The system allows the larger corporation to 
remain willfully blind of any abuses occurring and minimizes 
any liability. In turn, both the trafficker and the business 
profit from the work of the enslaved victim.
    Currently, actual knowledge is the standard of proof 
required to find a business culpable of human trafficking 
offenses. Short of a change to State and Federal law, both the 
corporations and traffickers will be able to continue to profit 
from this system.
    Since 1997 until now, including investigations I am 
currently involved with, human trafficking and slavery is 
occurring in the agricultural fields of Florida. Because this 
work is migratory, slavery is not just affecting Florida, but 
other States as well, where workers are transported to pick in 
the fields of other States. In addition, this atrocity has 
affected United States citizens who were enslaved in Florida in 
the cases of U.S. v. Evans and U.S. v. Lee, where U.S. citizens 
were held and forced to work in agricultural fields.
    One public misperception is that a person needs to be 
transported into this country to be a victim. This couldn't be 
any further from the truth, and crossing borders is not 
required. Knowing that this is occurring not just in the State 
of Florida, but across this Nation, it is egregious that any 
entity should deny the existence of human trafficking. This 
arrogance, willful blindness, and lack of social responsibility 
offends our basic rights guaranteed by this Nation's 
Constitution.
    Once again, I would like to thank Chairman Kennedy and the 
Senators of this committee.
    [The prepared statement of Mr. Frost follows:]
                  Prepared Statement of Charlie Frost
    Thank you, Chairman Kennedy, Ranking Member Enzi, Senator Sanders 
and other distinguished committee members, for granting me the 
privilege of speaking to this committee today. On behalf of Sheriff 
Hunter of the Collier County Sheriff 's Office, I am honored to speak 
to this committee about my experiences in investigating human 
trafficking and how this crime against fundamental human rights impacts 
victims working in the agricultural fields. Prior to the inception of 
the Trafficking Victims Protection Act of 2000 (TVPA) the Collier 
Sheriff 's Office had been involved in some investigations of human 
trafficking, but in December 2004 through a grant from the Bureau of 
Justice Administration the Collier Sheriff 's Office dedicated a full-
time investigator and victim advocate to combat human trafficking and 
assist victims in Collier County. In the beginning of 2006, I became 
the investigator for the human trafficking unit. Since then, I have 
worked with prosecutors from the U.S. Attorneys Office, and Department 
of Justice's Civil Rights Unit, Special Agents from the Federal Bureau 
of Investigations (FBI), and the Department of Homeland Security 
Immigrations and Customs Enforcement (ICE), and State and local law 
enforcement agencies to ensure the prosecution of the perpetrators of 
human trafficking offenses. In addition, I have collaborated with 
members of non-governmental organizations such as, The Coalition of 
Immokalee Workers, and the Florida Freedom Network to provide 
assistance to victims of human trafficking.
    One aspect of my duties is to provide education on the subject of 
human trafficking to law enforcement agencies, community service 
providers and civic groups throughout the area. When I first began 
providing the presentations there was one common occurrence. Most 
people were unaware that human trafficking, which is just another 
moniker for slavery, was occurring today. Today's form of slavery does 
not bear the overt nature of pre-civil war slavery, but it is no less 
heinous and reprehensible than the slavery of our Nation's past. Today, 
human trafficking has surreptitiously found its way into our society 
and continues to thrive even as I speak to this committee today.
    As I mentioned earlier, human trafficking is nothing less than 
modern day slavery. Trafficking is the recruitment, harboring, 
transporting, provision, or obtaining of a person for labor or services 
through the use of force, fraud or coercion for the purpose of 
subjection to involuntary servitude, peonage, debt bondage and slavery 
(TVPA 2000). Through interviews with victims, I have gained knowledge 
of how traffickers accomplish their control of the victims. Traffickers 
use threats and actual physical violence on victims to enforce their 
will upon them. Victims have been beaten or have witnessed beatings of 
other workers who would not relinquish their earnings, disobeyed 
traffickers, who have left the camp and been found, or who have 
attempted to escape. Traffickers create an environment of fear meant to 
control and isolate victims. Another method of control used by 
traffickers is to hold a victim in a system perpetually accruing debt. 
Victims have incurred debts for housing, food, water and 
transportation. In one instance, victims related to me were charged 3 
days worth of wages if they were sick for 1 day and could not work. 
This of course is added to the debt then subtracted from what the 
victims have earned at the end of the week. Victims earning a dollar 
per bucket of picked tomatoes can work for the full week and receive 
nothing more than $20 from the trafficker at the end of the week.
    Traffickers use threats against the victim's family in their home 
country to control the victims. In one instance, a victim ran away from 
the camp and the traffickers called the victim's family in Mexico. The 
family was threatened and told to tell the victim, he needed to return 
to the camp or the traffickers would kill the family. Once the victim 
heard this, he returned to the camp. This same tactic has hindered an 
investigation of mine. Victims were cooperative, and were ready to 
assist in prosecution. They subsequently related this to their family, 
and the family asked them to no longer cooperate. The family became 
fearful for their lives because as the victims said to me the 
traffickers are the law of the village. I asked the victims what this 
meant. They replied the trafficker's family has all the guns, and they 
run the village.
    These are only a few of the examples of what I have learned during 
my investigations. Traffickers employ these and several other methods 
to exploit victims for the traffickers own personal financial gain. The 
bottom line is the traffickers profiting from the suffering of other 
human beings to satisfy their greed. Traffickers cultivate this 
environment of fear to their own benefit and because of the fear; few 
people are willing to identify themselves as victims to law enforcement 
making my task difficult at best.
    The State of Florida has been the venue of several cases of human 
trafficking over the past decade. During this time, several cases have 
been brought against traffickers who have forced their victims to work 
in the agricultural fields in Florida. Victims of these cases were 
forced to work in both tomato and citrus fields. One common denominator 
identified by Florida State University's Center for the Advancement of 
Human Rights (CAHR) research and in my investigations is in almost all 
cases of labor trafficking in Florida, the traffickers are 
subcontractors to larger businesses. This system also allows the larger 
corporation to remain willfully blind of any abuses occurring and 
minimize any liability. In turn, both the trafficker and the business 
profit from the work of the enslaved victim. Currently, actual 
knowledge is the standard of proof required to find a business culpable 
of human trafficking offenses. Short of a change to State and Federal 
law both corporations and traffickers will be able to continue to 
profit from this system.
    Since United States vs. Ramos in 1997 until now and including 
investigations I am currently involved with human trafficking, slavery, 
is occurring in the agricultural fields of Florida. Because the work is 
migratory, slavery is not just affecting Florida but other States as 
well where workers are transported to pick in the fields. In addition, 
this atrocity has affected U.S. citizens who were enslaved in Florida 
in the case of United States. vs. Evans where U.S. citizens were held 
and forced to work in the citrus fields. One public misperception is 
that a person needs to be transported into this country to be a victim 
of human trafficking. This couldn't be further from the truth and not 
required by the Trafficking Victims Protection Act. Knowing that this 
is occurring not just in the State of Florida but across the Nation, it 
is egregious that any entity should deny the existence of human 
trafficking. This arrogance, willful blindness, and lack of social 
responsibility offends our basic rights guaranteed by our Nation's 
constitution.
    Once again, I would like to thank Chairman Kennedy, Ranking Member 
Enzi, Senator Sanders, and the other distinguished members of this 
committee for allowing me to be here today.
    It would be my pleasure to answer any questions this committee has.

    Senator Sanders. Thank you very much, Mr. Frost.
    Eric Schlosser is a well-known investigative reporter, 
familiar with agriculture and food issues, and we thank him 
very much for being with us.

STATEMENT OF ERIC SCHLOSSER, INVESTIGATIVE REPORTER, MONTEREY, 
                               CA

    Mr. Schlosser. Thank you. I would like to thank the 
committee for inviting me to testify here today.
    I have been involved for more than a decade in the effort 
to improve the lives of America's farmworkers, and I am here 
today to say that what is going on in the tomato fields of 
Florida right now is so bad that it defies words. Senator 
Sanders and I happened to be in Immokalee, FL, this January 
when the U.S. Department of Justice released its indictment in 
the latest slavery case there. Here are some details from that 
case.
    The defendants have been accused of threatening, slapping, 
and kicking farmworkers, chaining them to a pole, beating them, 
locking them inside U-Haul trailers, keeping them in debt, and 
forcing them to work for free. The indictments read like 
something you might see in the year 1868, not the year 2008.
    Last year, a Florida labor contractor named Ronald Evans, 
Sr., was sentenced to 30 years in Federal prison for a wide 
variety of crimes. Evans had recruited migrant workers at 
homeless shelters throughout the Southeast, often paid them 
with crack cocaine instead of cash, kept them in debt, and 
housed them behind a fence topped with barbed wire.
    Mr. Evans wasn't recruiting migrants for some fly-by-night 
operation, some fringe operator. Mr. Evans was working for the 
former chairman of the Florida Fruit and Vegetable Association, 
one of the most prominent farmers in the State. I find it 
incredible that in the year 2008 there is still slavery in the 
United States. I find it even more incredible that the tomato 
growers of Florida and some of their fast food customers 
continue to deny that these abuses exist.
    During the same week that three tomato pickers escaped from 
a U-Haul truck where they were being imprisoned, setting in 
motion the Justice Department's latest slavery case, during 
that very week, representatives of the Florida Tomato Growers 
Exchange and the Burger King Corporation staged a press junket 
in a nearby field and claimed that slavery wasn't a real 
problem.
    They presented an independent report by an independent 
auditor that suggested there was no slavery in the tomato 
fields of Florida. Their so-called independent auditor was soon 
proven to be totally and independently wrong.
    I am glad that Reginald Brown from the Florida Tomato 
Growers Exchange is here with us today. Mr. Brown, if your 
farmers are doing such a good job taking care of their workers, 
why have none of the seven major slavery cases in Florida been 
uncovered by one of your farmers or by one of their farm 
managers? The labor contractors in this industry are in an 
ideal position to uncover these abuses. Yet, again and again, 
they have been the ones indicted and convicted and sent to 
Federal prison for committing these abuses.
    Mr. Brown, you have said that your industry is shocked and 
appalled by the idea of involuntary servitude. Yet, after Abel 
Cuello was released from Federal prison after being convicted 
of slavery, after holding more than 30 tomato pickers at an 
isolated camp against their will, after all of that, Abel 
Cuello was released from Federal prison and then hired as a 
labor recruiter by one of the largest tomato growers in 
Florida. I ask what kind of message does that send?
    Why hasn't your organization condemned the rehiring of a 
man convicted of slavery? Mr. Brown, you have said more than 
once that it would be un-American for a fast food company to 
pay an extra penny per pound for tomatoes with the extra penny 
going to the migrants. Well, I say it is un-American to allow 
slavery in the year 2008, to deny that this problem is real, 
and to vilify and attack the one group, the Coalition of 
Immokalee Workers, that has done more than any other to fight 
against slavery in the State of Florida.
    I applaud the committee for today's hearing. Much more 
needs to be done to hold tomato growers accountable for what is 
happening to their workers. Farmers who obey the law shouldn't 
have to compete with farmers who employ slave labor. These 
abuses are un-American. They are unacceptable. And they must 
stop.
    Thank you.
    [The prepared statement of Mr. Schlosser follows:]
                  Prepared Statement of Eric Schlosser
    I'd like to thank the committee for inviting me to testify here 
today. I have been involved for more than a decade in the effort to 
improve the wages and working conditions of America's farmworkers. This 
committee deserves much praise for taking an interest in the plight of 
some of the poorest working men and women in the United States. What is 
happening right now in the tomato fields of Florida is so bad that it 
almost defies description, let alone belief.
    This January Senator Bernie Sanders and I happened to be visiting 
Immokalee, FL, the heart of the State's tomato-growing region, when the 
U.S. Justice Department released its indictments in the latest 
farmworker slavery case. The defendants in the case have been accused 
of threatening, slapping and kicking workers, beating workers, locking 
them inside trucks, chaining them to a pole, deliberately keeping them 
in debt and forcing them to work for free. The indictments read like 
something you might encounter in the year 1868, not 2008. The 
defendants have been charged, among other things, with violating the 
13th amendment of the U.S. Constitution. That is the amendment 
outlawing slavery and involuntary servitude.
    I find it incredible that in the year 2008--the two hundredth 
anniversary of the abolition of the slave trade--there is still slavery 
in the United States. I find it even more incredible that the tomato 
growers of Florida and some of their largest customers continue to deny 
that such abuses exist. It was pure coincidence that the Department of 
Justice's slavery indictments were announced on the same day that 
Senator Sanders and I were talking to tomato pickers in Immokalee. But 
you do not need to be a rocket scientist or have an advanced degree in 
farm labor economics to see that the living conditions and the working 
conditions there are terrible. You need only spend a few hours talking 
to farmworkers, away from the prying eyes of their labor contractors 
and employers.
    I think most Americans would agree that the practice of slavery in 
the United States is unacceptable. But that sense of outrage does not 
seem to extend to the tomato growers of Florida and some of their fast 
food customers. During the same week that three tomato pickers climbed 
through the ventilation hatch of the box truck where they were being 
held against their will and escaped to freedom, setting in motion the 
Justice Department's latest slavery case--during that very same week, 
representatives of the Florida Tomato Growers Exchange and the Burger 
King Corporation staged a press junket in nearby fields, introducing 
reporters to happy farmworkers with ``no complaints'' and strongly 
denying that involuntary servitude or slavery was a problem. Perhaps 
the growers and some of their fast food customers are sincerely unaware 
that tomato pickers are being exploited. But such earnest pleas of 
ignorance bring to mind the scene in the film Casablanca when a French 
policeman, Captain Renault, is ``shocked, shocked'' to find out that 
gambling is occurring--at the casino where he regularly gambles.
    The plight of tomato pickers in Florida needs to be understood in a 
broader historical context. Farmworkers are now, and have long been, 
among the poorest workers in the United States. The historian Cletus E. 
Daniel has described early twentieth century efforts to recruit 
farmworkers for California's fruit and vegetable harvest as ``the 
search for a peasantry.'' In 1951 the President's Commission on 
Migratory Labor condemned the abysmal working conditions that 
farmworkers endured. ``We depend on misfortune to build up our force of 
migratory workers,'' the commission concluded, ``and when the supply is 
low because there is not enough misfortune at home, we rely on 
misfortune abroad to replenish the supply.'' During the 1970s, 
campaigns led by Cesar Chavez and the United farmworkers union raised 
wages and greatly improved working conditions. But most of those gains 
were lost during the 1980s and 1990s. According to the U.S. Department 
of Labor, the typical farmworker earns roughly $10,000 to $12,000 a 
year. That figure may be somewhat inflated, due to the inclusion of 
supervisory workers in the most recent wage survey. In 2001 the 
Department of Labor estimated that the typical farmworker earned about 
$7,500 a year. It is hard to see how some of the most desperate workers 
in the United States gained a pay increase of 50 percent or more during 
the past 7 years. Whatever the actual figure, there is little dispute 
that farmworkers rank near the very bottom of the American pay scale.
    Farmworkers not only do hard manual labor for low wages, but they 
also suffer enormous stress and uncertainty about the prospects of 
employment. Almost all harvest work is considered ``at will.'' There is 
no contract, no seniority, no obligation from the employer beyond the 
day-to-day. A farmer hires and fires workers as necessary, without need 
for explanation. It makes no difference whether the worker has been an 
employee for 10 days or 10 years. The terms of employment are laid down 
on a daily basis. A migrant usually does not know how long he or she 
will work on a given day--or even if work will be available. On a good 
day, the wages that can be earned may be high. But a good day may be 
followed by weeks without any work. This system gives an extraordinary 
amount of power to farmers and their labor contractors.
    I spent a year investigating the poverty of farmworkers in 
California, the State with by far the largest number of migrants. I 
found that migrants were living in garages, abandoned cars, labor camps 
unfit to be horse barns. Right now there are thousands of farmworkers 
living outdoors in the hillsides of northern San Diego County. At one 
of the hillside encampments I visited, migrants slept beneath plastic 
garbage bags at night and did their laundry each week in a neighboring 
stream. The farmworkers I met seemed to embody a great many of the 
virtues that we cherish in the United States. These migrants were hard-
working, deeply religious, devoted to their families--and yet were 
being exploited. It seemed wrong to me, pure and simple. In this 
country, hard work should get you out of poverty, not keep you in it.
    Bad as things are for the migrant workers in California, the 
migrants in Florida seem to have it even worse. Organizations like the 
United Farmworkers Union and California Rural Legal Assistance provide 
some outlet for migrant grievances and some hope for a better future in 
that State. The primarily Latino workforce in Florida agriculture is 
much more isolated, with little institutional support. The abuse of 
farmworkers in Florida has a uniquely dark history. Various systems of 
peonage, forced labor, and slavery thrived there long after the end of 
the Civil War. For decades, African-American men convicted of petty 
crimes were routinely leased to farmers and put to work in the fields. 
An excellent historical account of this sort of convict-leasing has a 
fitting title: Worse Than Slavery. Florida was one of the last States 
in the south to outlaw convict-leasing, finally prohibiting it in 1923. 
But Florida's vagrancy laws allowed sheriffs to arrest young African-
American men, fine them, and force them to pay off the fine by working 
for local citrus and tomato growers. That practice continued well into 
the 1940s.
    Today the living conditions among migrant workers in Immokalee, FL, 
though deplorable, are not as bad as in some rural California 
communities. But the power that farmers wield in Florida seems much 
more complete. The early morning scene in Immokalee's town square--
where crowds of migrants gather at dawn hoping to find work, and labor 
contractors pick workers like cattle in an auction--feels like a scene 
in a nineteenth century novel. ``Harvest of Shame,'' the documentary 
about migrants made by Edward R. Murrow in 1960, opens with a similar 
scene, showing migrants being selected and packed into trucks. Much of 
``Harvest of Shame'' was filmed in Florida. In the documentary, a 
Florida farmer describes his workforce in terms that remain 
unfortunately relevant today: ``We used to own our slaves--now we just 
rent them.''
    Tomato pickers in Immokalee now earn about 40 to 50 cents for each 
32-pound bucket that they harvest. The wage rate has not changed 
significantly in 30 years. Adjusted for inflation, that means the wages 
in Immokalee's tomato fields have declined by as much as 75 percent. 
Tomato pickers are hired mainly by labor contractors, who try to shield 
farmers from legal responsibility. The labor contractors often charge 
migrants for food, housing, and transportation, deducting the costs 
straight from the migrant's paycheck. Labor contractors often pay the 
smuggling fees of new migrants, then force them to work off the debt. 
This system is an invitation to abuse. Many of the recent slavery cases 
in Florida involve illegal immigrants being held in servitude by their 
labor contractors. But this is not primarily an immigration problem. It 
is a human rights problem. U.S. citizens have been enslaved lately in 
Florida, as well.
    A Florida labor contractor named Michael Allen Lee recruited 
migrants at homeless shelters, charged them for room, board, 
transportation, and cigarettes, loaded them with debt, gave them as 
little as $10 for a day's work in the fields, sometimes paid them in 
crack cocaine and alcohol instead of cash, and threatened to hurt 
anyone who ran off. Lee was later arrested, convicted in Federal court, 
and given a 4-year prison sentence in 2001. A Florida labor camp owner 
named Ronald Evans, Sr., also recruited migrants at homeless shelters, 
focusing on African-American drug addicts. Evans pushed his workers 
into debt, supplied them with alcohol and cocaine, housed them behind a 
fence topped with barbed wire, and paid them less than one-third of 
their full wages. Last year Evans was convicted in Federal court and 
sentenced to 30 years in prison for a wide range of offenses. The seven 
major slavery cases prosecuted in Florida over the past decade have all 
been handled by the Department of Justice. In keeping with the brutal 
history of farm labor in Florida, State officials have done little to 
prevent or punish cases of involuntary servitude.
    Not a single Florida farmer has thus far been prosecuted in the 
seven Federal slavery cases, which have involved hundreds of migrants. 
Perhaps the farmers who employed these migrants were entirely 
innocent--entirely unaware that some of their workers were being beaten 
and enslaved. If that is the case, then at the very least there is a 
problem with labor management at the highest levels of Florida 
agriculture. Ronald Evans, Sr., one of the labor contractors imprisoned 
for paying migrants with crack cocaine, worked as a labor recruiter for 
Frank Johns, a former chairman of the Florida Fruit and Vegetable 
Association. The industry seems remarkably forgiving about violations 
of the 13th amendment. In 1999, a labor contractor named Abel Cuello 
was convicted in Federal court for enslaving at least 30 migrants in 
Florida and South Carolina. After spending less than 3 years in prison, 
Cuello was released, eventually regained his license as a labor 
contractor and found work as a labor recruiter, along with his wife, at 
Ag-Mart Produce, one of Florida's largest tomato growers.
    The Department of Justice has done a fine job pursuing slavery 
cases in Florida. But it can devote even more resources to the fight 
against trafficking and involuntary slavery. A much stronger effort can 
be made to hold farmers legally responsible for the enslavement of 
their workers. Farmers in Florida must be held accountable for what 
they suffer and permit to happen on their land. At the moment, a 
loophole in the Trafficking Victims Protection Act makes it difficult 
to prosecute farmers in slavery cases. That loophole should be closed, 
and those who ``know or have reason to know'' about involuntary 
servitude should face criminal charges. The Department of Labor should 
devote greater resources to enforcing the labor laws not only in 
Florida agriculture, but also in agriculture throughout the United 
States. A significant increase in the Federal minimum wage---which, 
adjusted for inflation, has declined by about 40 percent since the late 
1960s--would greatly improve the lives of the Nation's poorest workers.
    The immediate solution to these problems, however, does not lie 
with the Federal Government or with State officials in Florida. The 
largest purchasers of Florida tomatoes must take responsibility for the 
labor conditions in which those tomatoes are produced. Fruit and 
vegetable farmers today are under enormous pressure to cut operating 
costs. They face increased competition from overseas suppliers and 
price reductions imposed by their largest customers. A few years ago, 
an article in The Packer, an industry journal, described the leading 
role that fast food chains have played in lowering the prices that 
Florida tomato farmers receive. ``Forcing down the cost of tomatoes, a 
minor component on the fast food menu, does little to make the 
restaurant more profitable'' the article warned. ``It will go a long 
way toward harming a loyal group of suppliers and growers and their 
workers.''
    Today the major fast food chains stand atop America's food chain. 
Their purchasing decisions can transform entire sectors of the Nation's 
agricultural economy. The fast food chains issue strict product 
specifications to suppliers and insist that they be met. When 
McDonald's introduced the Chicken McNugget in the mid-1980s, it 
fundamentally changed how poultry are raised, bred, processed and sold 
in the United States. When McDonald's decided in 2000 not to purchase 
any genetically modified potatoes, it effectively eliminated the market 
for those potatoes. In recent years, the animal welfare demands of the 
leading chains have prompted huge changes in the industrial practices 
of the American meat packing industry.
    The Coalition of Immokalee Workers recognized years ago that the 
fast food industry has enormous influence over what happens in the 
tomato fields of Florida. The coalition is a non-profit group that 
works on behalf of migrants in Florida. It has led the campaign to 
increase the wages of tomato pickers by one penny per pound, thereby 
significantly raising their wages. It has helped the Department of 
Justice investigate most of the slavery cases prosecuted since the mid-
1990s. In recognition of this work, the coalition has received awards 
from the Robert F. Kennedy Memorial Foundation and Anti-Slavery 
International, the world's oldest human rights group. The Coalition of 
Immokalee Workers has been one of the few brave and effective defenders 
of migrants in the State of Florida.
    I have been a strong critic of the fast food industry for years. 
But I applaud Yum! Brands Inc., the parent company of Taco Bell and 
Pizza Hut, for its commitment to ending the exploitation of tomato 
pickers in Florida. Its agreement with the Coalition of Immokalee 
Workers provides a model for how wages can be meaningfully increased 
and working conditions can be carefully monitored. The additional penny 
per pound that Yum! has agreed to pay, given directly to the workers, 
imposes no hardship upon Florida tomato farmers and does not increase 
the consumer price of any Yum! Brands product. The McDonalds 
Corporation deserves credit for agreeing to a similar arrangement.
    The admirable behavior of these two industry giants makes the 
behavior of Burger King and its ally, the Florida Tomato Growers 
Exchange, seem completely unjustifiable. It is hard to see how the 
payment of an extra penny per pound for labor costs would violate U.S. 
antitrust laws, as the tomato growers claim. The Florida Tomato Growers 
Exchange has imposed various surcharges on its members for years, 
without running afoul of any Federal law. If it can impose a mandatory 
surcharge for higher fuel costs (as was done in 2005), it can surely 
allow a voluntary surcharge to help eliminate the poverty of tomato 
pickers. Burger King, for its part, has argued that Florida tomato 
pickers are actually well-paid--and at the same time has made a well-
publicized donation to a charitable group devoted to the children of 
those workers. It is hard to see why the children of migrants who are 
being paid a decent wage would need any charity whatsoever. The tomato 
pickers in Florida are not asking for charity. They are seeking a fair 
wage for their hard work and an end to slavery.
    Instead of making charitable donations, Burger King should be 
showing the same sort of concern for human rights that it recently 
demonstrated on behalf of animal rights. ``Our corporate conscience 
drives our commitment to animal welfare,'' a Burger King executive said 
on March 27. ``For almost a decade we have used our purchasing power to 
encourage positive steps in animal agriculture. We are proud to set an 
example for the restaurant industry.''
    If Burger King can partner with People for the Ethical Treatment of 
Animals to improve the lives of chickens, it can certainly work with 
the Coalition of Immokalee Workers, a far less controversial group, to 
improve the lives of migrant workers in Florida.
    The head of the Florida Tomato Growers exchange has called the 
proposed one-penny surcharge for migrants ``un-American.'' I think most 
Americans would strongly disagree. Slavery, indentured servitude, 
desperate workers living in fear--that's what most people would 
consider unacceptable and un-American. The exploitation of farmworkers 
should not be tolerated in Florida. It should not be tolerated anywhere 
in the United States. There are many social problems that are extremely 
difficult to solve. This is not one of them. A few years ago I 
calculated how much it would cost the typical American household if the 
wages of every migrant farmworker was doubled. The answer was about $50 
a year--and even that amount is probably too high. By paying a few 
pennies extra, an enormous amount of misery can be ended. The large 
fast food chains and supermarket chains must insure that those pennies 
are paid, and that the money goes directly to farmworkers. A little bit 
of compassion will go an awfully long way.

    Senator Sanders. Thank you very much, Mr. Schlosser.
    Mary Bauer is the Director of the Southern Poverty Law 
Center's Immigrant Justice Project. She represents farmworkers 
and other low-wage immigrant workers in high-impact cases in 
nine States in the South. Ms. Bauer has a B.A. from William and 
Mary and a law degree from the University of Virginia School of 
Law.
    Ms. Bauer.

 STATEMENT OF MARY BAUER, DIRECTOR, IMMIGRANT JUSTICE PROJECT, 
          SOUTHERN POVERTY LAW CENTER, MONTGOMERY, AL

    Ms. Bauer. Thank you, Senators, for inviting me to speak 
about farmworkers in the United States.
    Over the past 2 decades, I have spoken with thousands of 
farmworkers in many States and represented workers in dozens of 
wage and hour and other kinds of cases in numerous States 
throughout the Nation. This is, unfortunately, not just a 
Florida issue.
    Farmworkers are desperately poor. While the Federal 
Government has estimated that the average annual income of 
farmworkers is a mere $11,000, that estimate is actually quite 
high because it includes some higher paid workers, such as crew 
leaders. A scholar studying farmworkers has said the most 
vulnerable migrant workers, such as those working for farm 
labor contractors in Eastern States, earn annual wages less 
than $5,000 per year.
    Farmwork is arduous and dangerous. Indeed, agriculture is 
consistently rated among the most dangerous occupations in the 
United States. But workers receive few benefits that other 
workers take for granted. Farmworkers were excluded from nearly 
all the major Federal labor laws passed during the New Deal. 
Some laws have been amended since then, but many exemptions 
remain.
    For example, farmworkers are not entitled to overtime under 
Federal law. On smaller farms and in short harvest seasons, 
farmworkers are not even entitled to the Federal minimum wage. 
Farmworkers are excluded from the National Labor Relations Act, 
which protects workers' rights to collectively organize.
    Child labor laws are riddled with exemptions for 
farmworkers. Children may legally perform farmwork as young as 
the age of 10, where 16 is the minimum age for many other 
occupations. In preparation for this hearing, I interviewed 
workers and advocates in Immokalee, FL, about their experiences 
in the field. Their reports are wholly consistent with my own 
experiences working with farmworkers over two decades.
    Based on their reports, Immokalee tomato workers are 
desperately poor, fearful of retaliation, lack benefits most 
workers take for granted, and are denied access to basic legal 
protections. Specifically, workers reported recurring problems 
with waiting time and other violations of the Fair Labor 
Standards Act.
    Workers report that they show up for work and are required 
to wait, often for hours, until the dew dries and the tomatoes 
can be picked. Similarly, when it rains, workers are routinely 
required to wait and are not paid for that time. Workers report 
that their pay stubs routinely fail to reflect the actual 
number of hours worked. Workers report that they are paid only 
by their production and the hours are doctored to coincide with 
that production.
    Workers suffer long periods of unemployment and are forced 
to migrant to obtain other low-paying, short-term jobs. When 
they do not work for a day or a week or a month, they receive 
no pay. Workers report that Government enforcement, 
particularly as to wage and hour violations, has no practical 
effect on their employment situation. Most workers report that 
they would never call the Department of Labor under any 
circumstances and have never seen Government enforcement 
officials in the field.
    Workers report chronic discrimination in hiring, placement, 
and working conditions. Workers reported that the sexual 
harassment of women on the job is a serious problem. Our office 
represented a group of Immokalee farmworker women in a case 
against a major tomato company in which the workers complained 
of rampant sexual harassment and retaliation when they 
complained. That case settled in 2007, but the problem remains 
in the industry.
    We receive numerous reports that children of very young 
ages work in the field to help out the family income. Workers 
fear retaliation if they complain or assert their rights. 
Workers report significant problems with safe and uninsured 
transportation to and between the fields. Workers are deeply 
concerned about the risks associated with exposure to 
pesticides. Workers express deep concerns about the crew leader 
and subcontracting systems.
    I spoke with Immokalee tomato workers about claims that 
workers average over $12 an hour. Every worker and every 
advocate with whom I spoke disputed that contention. ``Oh, if 
it were only so,'' they said.
    Congress should end agricultural exceptionalism that is 
enshrined in the law. Farmworkers should be entitled to 
overtime pay and the other kinds of protections that most 
workers take for granted. Most importantly, farmworkers deserve 
a living wage and strong enforcement of the law. The focus of 
that enforcement should not be on low-level crew leaders, but 
on the entities that have the power to change these conditions.
    I thank you for this opportunity and await any questions 
you might have.
    [The prepared statement of Ms. Bauer follows:]
                    Prepared Statement of Mary Bauer
    Thank you for the opportunity to speak to you about the abuses 
experienced by farmworkers in the United States.
    My name is Mary Bauer. I am the Director of the Immigrant Justice 
Project of the Southern Poverty Law Center. Founded in 1971, the 
Southern Poverty Law Center is a civil rights organization dedicated to 
advancing and protecting the rights of minorities, the poor, and 
victims of injustice in significant civil rights and social justice 
matters. Our Immigrant Justice Project represents low-income immigrant 
workers in litigation across the Southeast.
    During my legal career, I have represented and spoken with 
literally thousands of farmworkers in many States. Currently, the 
Southern Poverty Law Center is representing agricultural workers in at 
least six class action lawsuits in the South. I have handled dozens of 
wage and hour cases in many States, and I am familiar with the kinds of 
routine exploitation that low-wage immigrant workers generally--and 
farmworkers specifically--experience.
    In preparation for this hearing, I interviewed workers and 
advocates in Immokalee, FL about their experiences in the field. What 
they told me is consistent with my own experiences working with 
farmworkers: Immokalee tomato workers are desperately poor, fearful of 
retaliation, lack benefits most workers take for granted, and denied 
access to basic legal protections.
                        farmworker demographics
    There are 2 to 3 million farmworkers in the United States. Nearly 
80 percent are male, and most are younger than 31 years of age. Most 
farmworkers are married and/or have children, but most live apart from 
their immediate family members as a function of their employment.\1\
---------------------------------------------------------------------------
    \1\ National Agricultural Workers Survey, U.S. Department of Labor, 
2005.
---------------------------------------------------------------------------
    While the Federal Government has estimated that the average annual 
income of farmworkers is a mere $11,000,\2\ that estimate is actually 
quite high because it includes higher paid workers, such as 
crewleaders. A scholar studying farmworkers has said:
---------------------------------------------------------------------------
    \2\ National Agricultural Workers Survey, U.S. Department of Labor, 
2005.

          ``Seasonal farmworkers are the poorest laborers in the United 
        States, earning an average of $6,500 per year. Farmworkers who 
        migrate are poorer than settled seasonal laborers, with 
        migrants earning $5,000 per year. The most vulnerable migrant 
        workers, such as those laboring for farm labor contractors in 
        eastern States, earn annual wages as low as $3,500.'' \3\
---------------------------------------------------------------------------
    \3\ Daniel Rothenberg, With These Hands: The Hidden World of 
Migrant Farmworkers Today (1998), p. 6.

    Piece-rate workers are generally paid by the bucket--in tomatoes, 
as little as 40 to 45 cents per bucket (a bucket is 32 pounds of 
tomatoes). At that rate, farmworkers have to pick around two tons of 
produce (125 buckets) to earn 50. The piece rate wages paid to tomato 
workers have not changed significantly in more than 20 years.\4\ In 
addition, workers reported that there is wide uniformity in the wages 
paid by tomato growers.
---------------------------------------------------------------------------
    \4\ Review of data from the Florida Department of Labor, 1980 to 
present.
---------------------------------------------------------------------------
    Migrant farmworkers are very poor, and they receive very few social 
benefits. Less than 1 percent of farmworkers receive general assistance 
welfare, and only 2 percent receive Social Security benefits.\5\
---------------------------------------------------------------------------
    \5\ National Agricultural Workers Survey, U.S. Department of Labor, 
2005.
---------------------------------------------------------------------------
    Farmworkers have long periods of unemployment, and most do not 
receive any form of pay, including unemployment compensation, during 
those periods. Crop workers are employed in the United States an 
average of 34\1/2\ weeks (66 percent) of the year.\6\
---------------------------------------------------------------------------
    \6\ National Agricultural Workers Survey, U.S. Department of Labor, 
2005.
---------------------------------------------------------------------------
    By the time a migrant farmworker child is 12 years old, he or she 
may work in the fields between 16-18 hours per week, leaving little 
time for school work.\7\
---------------------------------------------------------------------------
    \7\ Migration Education Messages and Outlook (MEMO) 1994.
---------------------------------------------------------------------------
                      farmworker health and safety
    Agriculture is consistently rated as one of the most dangerous 
occupations in the United States.\8\ Farmworkers suffer from the 
highest rate of toxic chemical injuries and skin disorders of any 
workers in the country.\9\ The children of migrant farmworkers have 
higher rates of pesticide exposure, malnutrition, and dental disease 
than the general population. Children of migrant farmworkers are also 
less likely to be immunized against disease.\10\
---------------------------------------------------------------------------
    \8\ National Center for Farmworker Health.
    \9\ National Agricultural Workers Survey, U.S. Department of Labor, 
2005.
    \10\ National Center for Farmworker Health.
---------------------------------------------------------------------------
    Only 10 percent of farmworkers report having employer-provided 
health insurance.\11\ None of the Immokalee workers I interviewed 
reported having any health insurance whatsoever.
---------------------------------------------------------------------------
    \11\ National Institute for Occupational Safety and Health, 2004.
---------------------------------------------------------------------------
                 agricultural exceptionalism in the law
    Farmworkers were excluded from nearly all major Federal labor laws 
passed during the New Deal. Some laws have been amended since then, but 
many exemptions remain. The dire situation faced by farmworkers stems 
from their lack of economic and political power. Because farmworkers 
have no measurable political influence, there has been little organized 
opposition to the efforts of agribusiness interests to deny farmworkers 
most of the legal protections other American workers take for 
granted.\12\ Among other things:
---------------------------------------------------------------------------
    \12\ Farmworkers' lack of political clout predates the relatively 
recent transformation of the farm labor workforce to one dominated by 
undocumented workers. Even during the decades when most farmworkers 
were U.S. citizens, their itinerant employment schedules, coupled with 
local residency requirements, prevented the vast majority of them from 
registering as voters.

     Farmworkers are not covered by workers' compensation laws 
in many States.
     Farmworkers are not entitled to overtime pay under Federal 
law.
     On smaller farms and in short harvest seasons, farmworkers 
are not entitled to the Federal minimum wage of $5.85 per hour.\13\
---------------------------------------------------------------------------
    \13\ Also, in most southern States, either there is no State 
minimum wage or farmworkers are expressly excluded from the State 
statute's coverage.
---------------------------------------------------------------------------
     Child labor laws are riddled with exemptions for 
farmworkers. Children may legally perform farmwork as young as 10 years 
of age. By contrast, 16 is the minimum age for most non-agricultural 
jobs.
     In some States, farmworker children are exempt from the 
State's compulsory education laws.\14\
---------------------------------------------------------------------------
    \14\ Under Alabama Statute Sec. 16-28-6(4), children who are 
legally employed under the State child labor code are not obligated to 
attend school. Because Alabama's child labor law (Ala. Stat. Sec.  25-
8-1) exempts agriculture, children employed in agriculture are not 
required to attend school in the State.
---------------------------------------------------------------------------
     Many State health and safety laws exclude farmworkers.\15\
---------------------------------------------------------------------------
    \15\ See, e.g., Ala. Stat. 25-1-1; Ark. Code Ann. Sec. 11-2-101; 
O.C.G.A. (Georgia) Sec. Sec. 34-2-2, 34-2-10; La. R.S. Sec. 23.13.
---------------------------------------------------------------------------
     Farmworkers are not covered by the National Labor 
Relations Act and thus have no protection against unfair labor 
practices when they seek to collectively act for better wages or 
working conditions, except in the handful of States that have passed 
statutes extending NRLA-type protections to agricultural workers.

    Although this hearing is not focused on conditions affecting H-2A 
workers, it should be noted that the Department of Labor's existing 
proposals to eviscerate the legal protections for those workers is 
likely to have a deleterious impact on the wages and working conditions 
of farmworkers generally. While the specifics of the Department of 
Labor's proposals to change the H-2A regulations are beyond the scope 
of my testimony today, the Southern Poverty Law Center strongly opposes 
efforts by the Department to slash H-2A workers wages and weaken the 
modest labor protections of the H-2A guestworker program.
   farmworker conditions in the southeast are the worst in the nation
    It is not merely coincidental that most of the major documentaries 
and exposes relating to farmworkers over the past four decades, from 
the epic ``Harvest of Shame'' aired in November 1960 to the April 2003 
New Yorker article on ``American Slaves Today,'' have focused on 
conditions in the Southeast. Historically, the worst abuses of migrant 
farmworkers have occurred in the region. The Southeastern States 
generally have few laws regulating employment, and those that exist 
largely exclude farmworkers. The farmworker population in the Southeast 
has always been composed principally of racial or ethnic minorities and 
has suffered considerable prejudice as a result. Finally, far more than 
in any other section of the country, growers in the Southeast have 
relied on farm labor contractors, or ``crewleaders,'' to recruit, 
supervise, transport, and pay the harvest workers. Undercapitalized and 
poorly regulated, farm labor contractors oftentimes abuse or cheat the 
workers, with the growers avoiding liability by contending that the 
migrants are employees of the crewleader, rather than the farm.
    In Florida, the Coalition of Immokalee Workers has committed to 
eliminating slavery and other abuses in the agricultural industry. The 
Coalition has been pivotal in making possible several important slavery 
and peonage prosecutions. In a recent case brought to court, a Federal 
grand jury indicted six people in Immokalee on January 17, 2008 for 
their part in what U.S. Attorney Doug Mallow called ``slavery, plain 
and simple.'' \16\ Unfortunately, despite the concerted efforts of the 
Coalition, slavery and peonage continue in the fields of Florida and 
the United States.
---------------------------------------------------------------------------
    \16\ Ft. Myers News-Press, ``Group Accused of Keeping, Beating, 
Stealing from Immokalee Laborers '' January 18, 2008.
---------------------------------------------------------------------------
    The Federal Government must increase its enforcement efforts to end 
these terrible abuses. Any focus on changing practices must entail a 
high-level focus on the companies using the services of these farm 
labor contractors and crewleaders. As United States Judge K. Michael 
Moore of the Southern District of Florida noted at the sentencing of 
one defendant found guilty of running a slavery operation in Florida:

          ``others at another level in this system of fruit-picking, at 
        a higher level . . . are complicit . . . They rely on migrant 
        workers, and they create a legal fiction or corporation that 
        insulates them between them and the workers themselves so that 
        they can be relieved of any liability for the hiring of illegal 
        immigrants. And yet they stand to benefit the most.'' \17\
---------------------------------------------------------------------------
    \17\ Quoted in Rural Migration News; See also Miami Herald ``Fields 
of Pain,'' series beginning, August 31, 2003.

    In crafting solutions now, Congress should be mindful of its own 
unsuccessful efforts to regulate abuses in the agricultural industry by 
targeting solely farm labor contractors. In 1964, Congress passed the 
Farm Labor Contractor Registration Act, which has been widely viewed as 
a failure, and the act was later repealed.\18\ Congress later enacted 
the Migrant and Seasonal Agricultural Worker Protection Act to regulate 
employers directly.\19\ It is clear that reform will not occur as a 
result of a crackdown on unscrupulous crewleaders because those 
crewleaders lack the power to bring about real change.
---------------------------------------------------------------------------
    \18\ Pub. L. No. 88-582, 78 Stat. 920 (1964) (repealed 1983); 
Michael G. Tierce, Note, The 
Joint Employer Doctrine Under the Federal Migrant and Seasonal Worker 
Protection Act, 18 RUTGERS L.J. 863, 869 (1987) ( ``It is generally 
agreed that FLCRA failed to achieve its objective of improving the 
working conditions of the migrant farmworkers.'' )
    \19\ 29 U.S.C. Sec. Sec. 1801-1874.
---------------------------------------------------------------------------
               farmworkers lack effective legal remedies
    Workers face dramatic barriers to obtaining legal redress when 
their rights are violated. Migrant farmworkers are disproportionately 
poor, non-English speaking, geographically isolated immigrants. For 
many, they are in an unfamiliar country with virtually no money, 
thousands of miles from home. They do not speak English. They are 
fearful of retaliation by an employer who is often also their landlord. 
Farmworkers' very reasonable fear is that the result of their asserting 
their rights will be not only losing their jobs and their income and 
being blacklisted from future employment, but also facing eviction and, 
often, deportation. When their rights are violated, they have few 
places, if any, to turn.
    Government enforcement of basic labor protections has decreased for 
all American workers in recent decades. The number of wage and hour 
investigators in the Department of Labor (DOL) declined by 14 percent 
between 1974 and 2004, and the number of completed compliance actions 
declined by 36 percent. During this same period, the number of U.S. 
workers covered by the Fair Labor Standards Act increased by more than 
half--from about 56.6 million to about 87.7 million.\20\ The Brennan 
Center for Justice concluded in 2005 that ``these two trends indicate a 
significant reduction in the Government's capacity to ensure that 
employers are complying with the most basic workplace laws.'' \21\
---------------------------------------------------------------------------
    \20\ Brennan Center for Justice, Trends in Wage and Hour 
Enforcement by the U.S. Department of Labor, 1975-2004, Economic Policy 
Brief, No. 3, September 2005.
    \21\ Id.
---------------------------------------------------------------------------
    Over the past 15 years, the U.S. Department of Labor, the agency 
charged with primary enforcement of Federal laws protecting migrants, 
has sharply reduced its resources directed to cases of farmworker 
abuse. This reduction is particularly acute in the Southeast. Although 
historical data reveal that more violations of farmworker protective 
laws occur in the Southeast than in any other area of the country, the 
Department of Labor's efforts have lagged badly in this region.
    There is a particular absence of enforcement against growers, with 
the majority of enforcement resources devoted to judgment-proof, 
itinerant farm labor contractors, or ``crewleaders,'' despite the fact 
that the principal Federal farmworker protective law provides that 
growers are responsible for ensuring farmworkers are properly paid, 
housed, and transported whenever the growers ``employ'' the 
workers.\22\
---------------------------------------------------------------------------
    \22\ Most courts analyzing such situations have concluded that the 
growers ``employ'' migrant workers supplied to them by farm labor 
contractors. See, e.g., Charles v. Burton, 169 F.3d 1322 (11th Cir. 
1999); Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997); Antenor v. D 
& S Farms, 88 F.3d 925 (11th Cir. 1996); Luna v. Del Monte, 2008 U.S. 
LEXIS 21636 (N.D. Ga. 2008).
---------------------------------------------------------------------------
    For many years, enforcement of farmworkers' legal rights has come, 
in part, through advocacy undertaken by grantees of the Legal Services 
Corporation (``LSC''). Beginning in the mid-1970s, the LSC started 
making special grants for LSC programs to serve migrant farmworkers in 
various States. Because of the restrictions placed on those programs in 
1996, these programs have been unable to file class action lawsuits and 
to represent undocumented workers for more than 10 years. These 
restrictions mean that LSC programs cannot bring the very impact 
litigation most likely to bring about legal change.
    There have been some efforts to interest private practitioners in 
taking on representation of migrant workers in the Southeast. 
Unfortunately, migrant farmworker cases are generally unattractive to 
the private bar. The logistics of such litigation are daunting, and the 
cases are not generally financially lucrative.
    Farmworker advocates have also attempted to use the Justice 
Department's Civil Rights Division as a mechanism to address situations 
that constitute peonage. However, jurisdiction is limited to those 
matters that reach the threshold of peonage. Very few criminal cases 
have been, or will be, brought. For each worker who can present a 
credible, corroborated claim of threat, there may be a hundred victims 
who have suffered the same kind of harm, but may not be able to prove 
that they are victims of a severe form of trafficking.
    In addition, criminal cases will not result in farmworker victims 
being adequately compensated; even in the rare case where the 
contractor is prosecuted, most of the victims will never receive even 
their unpaid minimum wages.
    Perhaps the greatest shortcoming of reliance on criminal 
prosecutions to curb farmworker exploitation has been the inability to 
reach those who benefit economically and have the power to restrain 
violations of the workers' rights--the farm owners who employ the 
services of the farm labor contractors.
              women workers face systemic abuse on the job
    It is estimated that there are 70,000 women farmworkers in Florida 
alone.\23\ For some women workers, problems include chronic sexual 
harassment on the job. The problem has received little public attention 
but is well-known to farmworker women, many of whom remain silent about 
sexual exploitation on the job.
---------------------------------------------------------------------------
    \23\ Larson, A Farmworker Enumeration Study, 2000; National 
Agricultural Workers Survey, U.S. Department of Labor.
---------------------------------------------------------------------------
    According to a study done by Maria Elena Trevino-Lopez, ``. . . 
Ninety percent of the farmworker women, the overwhelming majority of 
these women being immigrants, reported that sexual harassment is a 
major problem confronting women farmworkers in the workplace.'' \24\ 
While investigating harassment of farmworker women in California, the 
U.S. Equal Employment Opportunity Commission found that hundreds, if 
not thousands, of farmworker women had to have sex with supervisors to 
get or keep jobs.\25\ In addition, these women put up with a constant 
barrage of grabbing, touching and propositions for sex by their 
supervisors.\26\
---------------------------------------------------------------------------
    \24\ Dominguez, Maria M. Sex Discrimination & Sexual Harassment in 
Agricultural Labor. 6 Am. U.J. Gender & L. 231, 14 (Fall 1997)
    \25\ Ontiveros, Maria L. Lessons from the Fields: Female 
Farmworkers and the Law. Maine Law Review, 55 Me. L. Rev. 157, 8 
(2003).
    \26\ Id.
---------------------------------------------------------------------------
    In one of the few such lawsuits ever brought on behalf of 
farmworker women in the United States, the Southern Poverty Law Center 
represented five Haitian women who were sexually harassed on the job 
while working in the packing house of Gargiulo, Inc. in Immokalee, FL. 
The lawsuit alleged that the women were subjected to repeated, 
unwelcome sexual advances by their supervisor and then faced 
retaliation after they complained. The women, who worked as tomato 
graders, rejected the supervisor's advances and then were suspended 
without pay, subjected to adverse working conditions and either fired 
or not rehired for a new packing season.
    In reaching a settlement in 2007, Gargiulo, Inc., one of Florida's 
largest fruit and vegetable wholesalers, agreed to pay $215,000 and 
entered into a consent decree to change its practices.\27\
---------------------------------------------------------------------------
    \27\ EEOC v. Gargiulo, Inc., No. 2:05-cv-460-Ft.M-29-SPC (M.D.Fla. 
2005).
---------------------------------------------------------------------------
    In another case involving women in tomato packing, the EEOC Miami 
District Office filed a title VII action alleging that defendants, 
national produce companies, subjected three female employees at its 
Immokalee, FL vegetable grading and packing facility to a sexually 
hostile work environment through the offensive verbal and physical 
conduct of two supervisors. The complaint also alleged that one of the 
employees was discharged in retaliation for rejecting the sexual 
advances of her supervisor. Defendants' sexual harassment policy was 
written only in English even though its workforce was comprised largely 
of immigrants of Haitian or Hispanic descent who read little or no 
English.\28\
---------------------------------------------------------------------------
    \28\ EEOC v. Produce, Inc., and Six L's Packing Co. No. 2:03-cv-
570-FtM-29DNF (M.D. Fla. November 30, 2004).
---------------------------------------------------------------------------
    In addition to sexual harassment in the workplace, immigrant women 
face other forms of gender discrimination, including unequal pay for 
equal work, pregnancy discrimination and disparate treatment.
       tomato workers in immokalee report chronic workplace abuse
    I have conducted numerous interviews with tomato workers and their 
advocates, in Florida and in other States. They report the following 
chronic difficulties:

     Workers suffer recurring problems with unpaid ``waiting 
time'' and other violations of the Fair Labor Standards Act. Workers 
routinely report that they show up for work and are required to wait, 
often for hours, until the dew dries and the tomatoes can be picked. 
Similarly, when it rains, workers are routinely required to wait, and 
are not paid for that time. As one worker told me: ``We are paid only 
when we pick; we are paid only for the buckets we produce.'' \29\
---------------------------------------------------------------------------
    \29\ See, for example, Mesa, et al. v. Ag-mart, (M.D. Fla., January 
26, 2007).
---------------------------------------------------------------------------
     I spoke with Immokalee tomato pickers about claims that 
workers average over $12 per hour. Every worker and every advocate with 
whom I spoke disputed that contention. One workers' response summed up 
the general refrain: ``If it were only so!''
     Workers reported to me that their paystubs routinely fail 
to reflect the actual number of hours worked. Workers report that the 
hour records on their pay stubs are routinely falsified to show that 
they have worked substantially fewer hours than they did, in fact, 
work. Workers report that they are paid only by their production, and 
the hours are ``doctored'' to coincide with their production. Thus, 
workers on identical crews who work identical hours (and who travel to 
the fields together) will have wildly disparate hours reported on their 
pay.
     Workers suffer long periods of unemployment and are forced 
to migrate to obtain other low-paying, short-term jobs. When they do 
not work--for a day, or a week, or a month--they receive no pay. For 
low-income families, this is devastating.
     Workers report that government enforcement, particularly 
as to wage and hour violations, has no practical effect on their own 
employment situation. Most workers told us that they would not consider 
calling the Department of Labor under any circumstances. None report 
having seen or spoken with any government enforcement agents.
     Workers report chronic discrimination in hiring, 
placement, and working conditions. Employers have a strong preference 
for young men. Men over the age of 35 are considered undesirable. 
Women, too, are less desirable. All workers reported that sexual 
harassment of women on the job is a problem.
     Workers report that there are significant difficulties in 
obtaining safe and decent housing at affordable rates.\30\
---------------------------------------------------------------------------
    \30\ See Renteria-Marin, et al. v. Ag-Mart Produce Inc., et al, 488 
F. Supp. 2d 1997 (M.D. Fla. 2007).
---------------------------------------------------------------------------
     We received numerous reports that children of very young 
ages work in the field to ``help out'' the family income. These 
children typically do not receive their own paystub (a violation of 
law); their production is simply added onto the pay of their parents.
     Workers report significant problems with uncompensated 
accidents and illnesses. Because workers are not paid when they do not 
show up for work (no worker reported having either health insurance or 
paid vacation or sick time), workers routinely work even when hurt or 
sick.
     Workers report significant problems with fears of 
retaliation if they complain or assert their rights. As one worker 
said: ``If you say something, they fire you.''
     Workers report significant problems with unsafe and 
uninsured transportation to and between fields.
     Workers report very significant problems with exposures to 
pesticides. Many incidents of the overuse of pesticides in the tomato 
industry, and the effects on workers and their families, have been 
well-documented.\31\ According to the Palm Beach Post, in a recent 10-
year period, Florida inspectors found 4,609 violations of pesticide 
regulations, but only 7.6 percent resulted in fines.
---------------------------------------------------------------------------
    \31\ See Palm Beach Post ``Why Was Carlitos Born This Way? '' March 
16, 2005; see also Herrera v. Ag-Mart Produce, Inc., Circuit Court of 
Hillsborough County, Florida, Case No. 06-001725, Division B.
---------------------------------------------------------------------------
     Some workers are employed through farm labor contractors, 
rather than directly through the employer. This exacerbates existing 
abuses, and means that workers have fewer real remedies.
                               conclusion
    The exploitation of migrant farmworkers is one of the major civil 
rights issue of our time. Laws excluding farmworkers from protection 
and the restrictions that keep legal services lawyers from effectively 
representing the most vulnerable workers are morally unacceptable.
    Far more can be done to improve conditions for farmworkers in the 
Southeastern United States and in the United States more generally. 
There is no justification for the continued agricultural exceptionalism 
that is codified in our laws. Farmworkers who labor long, arduous hours 
should be paid overtime wages and they should be eligible for 
unemployment compensation when they are out of work. The restrictions 
on legal services undermine efforts to enforce legal protections. 
Congress alone has the authority to change many of those laws.
    Congress must demand an increase in the effective enforcement of 
the legal rights of workers by the Department of Labor and other 
agencies--with a strong, targeted focus on growers and associations, 
rather than on crewleaders.
    We must all support the efforts made by workers themselves to 
improve their wages and working conditions. Where workers come together 
to take courageous actions to enforce their rights--such as the workers 
who have created the Coalition of Immokalee Workers--those efforts 
should be supported. The workers who do the backbreaking work to put 
produce on our table should receive a decent, living wage. Each day we 
accept the benefits of that labor; we should also accept the 
concomitant responsibility to ensure that workers are treated fairly.
    Thank you again for the opportunity to testify. I welcome your 
questions.

    Senator Sanders. Thank you very much, Ms. Bauer.
    Reginald Brown is the Executive Vice President of the 
Florida Tomato Growers Exchange. Prior to joining the exchange, 
Mr. Brown worked for the Florida Fruit and Vegetable 
Association and also for the Collier County Extension, as 
director for the Florida Cooperative Extension.
    Mr. Brown, thanks very much for being with us.

 STATEMENT OF REGGIE BROWN, EXECUTIVE VICE PRESIDENT, FLORIDA 
             TOMATO GROWERS EXCHANGE, MAITLAND, FL

    Mr. Brown. Thank you, Senator.
    Just as our growers need seed, rain, and Florida sunshine, 
we need the workers to harvest our crops. We value the services 
of our workers by paying and treating our workers fairly. The 
fact that thousands voluntarily return to our fields to pick 
tomatoes year after year, decade after decade demonstrates that 
fact.
    We are here before this committee because the Coalition of 
Immokalee Workers, a purported Florida labor organization, has 
leveled accusations at Florida's tomato growers on a number of 
fronts. We thank you for the opportunity today to state the 
facts, which stand in stark contrast to CIW's charges.
    In the past several years, CIW has organized boycotts of 
major fast food corporations and demanded that these companies 
pay an extra penny a pound to workers who pick tomatoes they 
buy. Two fast food companies, Yum! Brands and McDonald's, 
agreed to the deal and, in turn, have pressured Florida's 
tomato growers to take on the role of passing the extra 
payments onto their workers. For a number of sound business 
reasons and legal reasons, the producers have declined to 
participate.
    The CIW has also accused Florida's tomato producers of 
slavery, substandard housing, abusive working conditions, and 
sub-poverty wages. Each claim raised--housing, wages, working 
conditions, and slavery--are addressed by local, State, and 
Federal laws. We absolutely agree with the committee that these 
laws should be aggressively enforced. Our growers comply with 
all of these laws and many others.
    First, let me state unequivocally that the Florida tomato 
growers abhor and condemn slavery. We are on the same side in 
this issue. It is outrageous to have slavery happening in 
Florida or any other State. Like all Americans, we are angered 
that slavery is even an issue in America in 2008. The reality, 
however, is that there are, indeed, cases of slavery and human 
trafficking occurring in many States today, and that is a 
tragedy.
    Many of our growers provide free and inexpensive housing 
that must pass Government inspection. We are committed to 
providing positive housing solutions for our workers and their 
families. Broad charges have been made that workers are being 
exploited and that Florida growers are not following labor 
standards. We firmly deny those allegations. It is difficult to 
prove a negative that our members are not and have no pattern 
of exploiting our workers.
    In 2005, we met with the officials of McDonald's to discuss 
how our growers could best show we were improving working 
conditions for our workers. A program was developed that calls 
for thorough direct auditing by independent third parties to 
assure that working standards are met and that workers are 
receiving the wages to which they are entitled. This program is 
the first of its kind in the U.S. produce industry, and we are 
proud of making that step forward. The program is Socially 
Accountable Farm Employers, or SAFE. SAFE is an independent, 
nonprofit organization that independently audits, certifies 
fair, legal farm labor practices in the agricultural industry.
    Exchange members pay their employees competitive wages. We 
must if we are to have workers each season to plant and harvest 
our crops. Otherwise, workers will go elsewhere. It is 
important to note that farmworkers are seasonal employees who 
often work for multiple employers during the year.
    Tomato harvesters have the opportunity to earn more than 
double the Federal minimum wage of $5.85 and nearly double 
Florida's $6.79 minimum wage. These are legal, competitive, and 
fair wages. Tomato harvesters' wages potentially can exceed by 
a considerable margin the hourly wage for most workers at fast 
food restaurants.
    Our exchange is a voluntary association of tomato growers. 
As a group, the growers have made a business decision not to 
participate in the penny a pound distribution arrangement, as 
is their right. For the record, we did not object to the fast 
food chains paying extra to workers who pick the tomatoes they 
buy. Our members simply do not want to be part of that 
arrangement.
    The critical fact is that no one can identify which worker 
should receive an additional payment, nor can the correct 
payment be calculated. If the extra penny funds are distributed 
among all workers, the fact that some will be paid too much and 
others will not get what is due them, this is neither right, 
nor fair.
    The exchange strongly believes because the parties to the 
arrangement know it is impossible to distribute the correct 
payment amounts to the right workers, the growers' 
participation would open them up to lawsuits from workers who 
were knowingly treated unfairly. Workers also could allege that 
it was or is a scheme to defraud them, and each check issued 
could be a separate bank or wire fraud. This is the definition 
of RICO.
    We believe that if our growers participate, they will be 
placed at a competitive disadvantage in the marketplace. We 
believe that ultimately the fast food chains and other 
companies will buy tomatoes elsewhere, most likely Mexico. If 
the business shifts offshore, not only will tomato harvesters 
be without the extra penny, they will be without jobs.
    We believe that entering into CIW's penny a pound program 
would legally tie the growers with each of our parties to the 
agreement. Our growers, the CIW, the fast food chains, and 
their suppliers would become joint employers under the Migrant 
and Seasonal Workers Protection Act. Given the fact that the 
growers are not mandated to participate in the penny a pound 
program and based on the facts as we know them, it would not be 
rational, reasonable, or in the best interest of the growers to 
join the program.
    We called upon CIW to take on the task of providing a way 
for Yum! and McDonald's to distribute monies to its members and 
workers without involving the growers. Alternatively, like our 
growers, McDonald's could contribute to charities that will be 
helpful to CIW's members and workers and their communities, 
such as the Catholic Charities, the University of South Florida 
Migrant Scholarships, the Redland Christian Migrant 
Association, and many others.
    There is no question that the harvesting of tomatoes is 
physically demanding work that most people do not want to do. 
Florida tomato producers are grateful to have a steady 
workforce that allows us to provide Americans with a bountiful, 
nutritious, and healthful crop. We have and continue to work 
with organizations such as Redland Christian Migrant 
Association, Catholic Charities, the University of South 
Florida Migrant Scholarships, and others so that we can jointly 
create, develop, and execute meaningful programs relating to 
healthcare, child care, housing, and education so that 
farmworkers and their families have a real chance to achieve 
the American dream.
    Thank you for giving us the opportunity to present our 
position on these issues.
    [The prepared statement of Mr. Brown follows:]
                Prepared Statement of Reginald L. Brown
                              introduction
    My name is Reggie Brown. I am the Executive Vice President of the 
Florida Tomato Growers Exchange (the Exchange). I worked for the 
Collier County Extension Director for the Florida Cooperative Extension 
Service in the 1980's. I worked for the Florida Fruit & Vegetable 
Association as Marketing Director for 11 years before working for the 
tomato industry. Our members are tomato growers. We harvest generally 
from November through May. Almost half of all the tomatoes consumed in 
the United States year-round come from the Sunshine State.
    Tomato growers have seen major challenges in recent years from 
hurricanes, invasive pests and diseases, and increased international 
competition from Mexico and Canada. The fruit and vegetable industry is 
a critically important sector of Florida agriculture, which is second 
only to tourism in importance to the State's economy. According to a 
2006 University of Florida study, agriculture, food manufacturing and 
natural resource industries in Florida directly create more than 
400,000 full- and part-time jobs, with a total employment impact of 
more than 700,000 full-time and part-time jobs. The direct value-added 
contribution is estimated at $20.32 billion, with a total impact of 
$41.99 billion.
    During the winter, Florida competes in the U.S. marketplace with 
Mexico and Canada. During the 6- to 7-month harvesting season, 
Florida's tomato growers employ more than 30,000 tomato workers.
    Just as our growers need the seeds, rain and Florida sunshine, we 
need the workers to harvest our crops. We value the services of our 
workers by paying and treating our workers fairly. The fact that 
thousands voluntarily return to our fields to pick tomatoes year after 
year, decade after decade, demonstrates that fact.
                               background
    We are here before this committee because the Coalition of 
Immokalee Workers (CIW), a purported Florida labor organization, has 
leveled accusations at Florida's tomato growers on a number of fronts. 
We thank you for the opportunity today to state the facts, which stand 
in stark contrast to the CIW's charges.
    In the past several years, the CIW has organized boycotts of major 
fast-food corporations and demanded that these companies pay an extra 
penny-per-pound to workers who pick the tomatoes they buy. Two fast-
food companies, Yum! Brands and McDonald's, agreed to the deal and in 
turn have pressured Florida's tomato growers to take on the role of 
passing the extra payments on to their workers. For a number of sound 
business and legal reasons, the producers have declined to participate.
    In the meantime, the CIW also has accused Florida's tomato 
producers of slavery, substandard housing, abusive working conditions, 
and sub-poverty wages. Each claim raised--housing, wages, working 
conditions, and slavery--are addressed by local, State and Federal 
laws. We absolutely agree with the committee that these laws should be 
aggressively enforced. Our growers comply with all of these laws and 
many others, too.
    My testimony today will refute the false allegations that have been 
made by the CIW and perpetuated in the media. It also will outline the 
growers' concerns over the penny-per-pound initiative, explain the 
technical and legal reasons they have chosen not to participate and 
suggest better solutions to improve the lives of farmworkers.
                                slavery
    First, let me state unequivocally that Florida's tomato growers 
abhor and condemn slavery. We are on the same side on this issue. It is 
outrageous to have slavery happening in Florida or in any other State. 
However, charges that tomato growers have enslaved workers are false 
and defamatory. Indeed, in correspondence with members of this 
committee and during meetings with Senators and staff, we have 
denounced slavery and these unsubstantiated claims. We could not 
survive without our valued employees.
    On numerous occasions, we have asked for any evidence that would 
substantiate these allegations against growers of Florida tomatoes and 
have received none. To the best of our knowledge, CIW has not taken any 
such evidence to the appropriate Federal, State or local authorities 
who are vested with oversight in these matters. If we had any 
information indicating a grower was involved in slavery, we would 
immediately turn it over to authorities and assist in prosecution.
    There is some confusion involving labor contractors and their 
relationship with growers. Like the workers, these contractors are 
employed by the growers. They assemble a crew and bring them to a farm 
and they as well as the workers are paid directly by the grower. To 
ensure that the workers are treated fairly and paid directly, growers 
participate in the SAFE program described in greater detail below. SAFE 
provides certification by an independent third party that the working 
conditions are safe and fair for the workers. No other produce group in 
the country has such a program to help workers.
    Like all Americans, we are angered that slavery is even an issue in 
America in 2008. The reality, however, is that there are indeed cases 
of slavery and human trafficking occurring in many States today, and 
that is a tragedy.
                                housing
    Many of our growers provide free or inexpensive housing that must 
pass government inspection. Many employers also pay for utilities 
including gas, electric, water and garbage, even when workers are not 
picking tomatoes. We are committed to provide positive housing 
solutions for our workers and their families.
    We are not aware of any substandard housing being owned, operated 
or controlled by any member of our Exchange. I was advised by members 
of this committee of sub-standard housing in Immokalee, FL. We 
requested any specific information that might help us investigate but 
received none. However, we did contact the Collier County Commissioner 
for Immokalee and asked that appropriate county agencies query the CIW 
about any specific cases of substandard housing, follow-up on the 
complaint and enforce the County's housing code.
                           working conditions
    Broad charges have been made that workers are being exploited and 
that Florida tomato growers are not following labor standards. We 
firmly deny these allegations. Again, we have asked for specific 
information on where this might be occurring so we could notify the 
proper authorities. We received no response, nor do we have any other 
information about worker standards violations.
    It is difficult to prove a negative--that our members are not and 
have no pattern of exploiting our workers. However, we believe we can 
in this case offer clear evidence of commitment to providing all of our 
workers a safe, secure working environment that complies with all laws 
and standards of performance.
    In 2005, we met with officials from McDonald's to discuss how our 
growers could best show we were improving working conditions for our 
workers. Based on these discussions with McDonald's and others in the 
industry, a program was developed that calls for thorough, direct 
auditing by an independent third party to assure that working standards 
are met and that workers are receiving the wages to which they are 
entitled. This program is the first of its kind in the U.S. produce 
industry. Indeed, McDonald's Web site indicates as part of its social 
responsibility program that it collaborated with us ``to improve 
conditions for farmworkers in the Florida tomato industry.''
    The program is Socially Accountable Farm Employers, or SAFE 
(www.safeag
employer.org). SAFE is an independent, nonprofit organization that 
independently audits and certifies fair, legal farm labor practices in 
the agriculture industry. It is a serious program that addresses 
important issues such as working conditions and wages. SAFE's 
certification signifies that a grower has complied with all employment 
laws and regulations such as the Migrant and Seasonal Worker Protection 
Act, and that the grower fosters a work environment that is free of 
hazard, intimidation, violence and harassment.
                                 wages
    Exchange members pay their employees competitive wages. We must, if 
we are to have workers each season to plant and harvest the crops. 
Otherwise, workers will go elsewhere. Yet each year thousands of 
workers return to the region to harvest Florida's tomatoes.
    It's important to note that farmworkers are seasonal employees who 
often work for multiple employers during the year, so what a worker 
might earn on a farm in Immokalee constitutes only part of his or her 
wages for the whole year.
    Tomato harvesters have the opportunity to earn more than double the 
Federal minimum wage of $5.85 and nearly double Florida's $6.79 per 
hour. These are legal, competitive and fair wages. Not only has the 
minimum wage increased in the past 20 years, the per-bucket rate 
workers earn has gone up as well. Yes, sometimes workers' hours are cut 
short because the weather is bad and they can't pick the tomatoes, or 
there are no tomatoes to be picked. Yet tomato harvesters' wages 
potentially can exceed by a considerable margin, the hourly wage for 
most workers at fast-food restaurants.
    In addition, the growers comply with all withholding of taxes and 
payment of FUTA, SUTA and WC contributions according to law.
    Based on payroll records our members submitted to the Federal 
Government for the last growing season, the average rate was between 
$10.50 and $14.86 per hour for tomato harvesters. We believe it may be 
higher for the 2007-2008 crop year. Again, these wages will be just a 
portion of the annual income for harvesters who move on to other crops 
in other regions.
                        penny-per-pound program
    Our Exchange is a voluntary association of tomato growers. As a 
group, the growers have made a business decision not to participate in 
the penny-per-pound distribution arrangement, as is their right. My 
goal today is to explain as clearly as possible the reasons behind that 
decision.
    Because the Exchange's members have not seen the agreements 
announced by Yum! Brands and McDonald's and don't know the specific 
details, it is difficult to fully assess the responsibilities, 
liabilities and impact of CIW's program. However, from a legal 
standpoint, we have been advised that the potential risks of 
participating in the penny-per-pound agreement far outweigh any 
benefit.
    At first blush, the penny-per-pound initiative sounds like a 
positive program. Fast-food chains agree to pay an extra penny for each 
pound of tomatoes they buy from Florida producers, with that extra 
penny distributed to the workers who picked them. Ostensibly, the 
growers would serve as the conduit through which the harvesters would 
receive the extra payment. But practically--and legally--speaking, the 
program is flawed.
    For the record, we do not object to the fast-food chains paying 
extra to the workers who pick the tomatoes they buy. Our members simply 
do not want to be part of that arrangement.
    However, we don't believe it is possible to legally and fairly get 
the extra payments into the hands of the specific harvesters who pick 
the tomatoes bought by the restaurants. The root of the problem is 
this: How can the fast-food chains (or any other company that agrees to 
the extra penny) accurately identify how many tomatoes come from which 
producer and which specific employees picked them? It is not possible, 
so how can they ensure the workers who picked their tomatoes are the 
ones who receive the additional wages?
    A review of the supply chain shows why the Yum! Brands and 
McDonald's agreements are unworkable.
    During harvest, tomatoes that the workers pick are not individually 
identified or labeled by worker or by customer. At the time of harvest, 
a tomato picked by a worker could ultimately be purchased by any number 
of the producer's customers.
    Tomatoes are not made available for commercial channels until after 
they have been washed, graded to Federal standards, sized and packed 
into cartons in a State and federally licensed packing facility. Some 
tomatoes (on average 20-25 percent) are never purchased because they 
are ``dumped'' for failing to meet grade or size standards, or have 
damage that makes them unfit for sale.
    Producers send their harvested and packed tomatoes to their 
customers, the repacking and distribution companies that supply the 
fast-food chains. A repacking facility receives tomatoes from any 
number of producers, and those tomatoes are then co-mingled in large 
lots.
    We believe the suppliers have agreed to participate in the program 
at the insistence of the fast-food chains. McDonald's indicates on its 
Web site that, ``[o]ur suppliers will establish a way for the 
additional penny per pound to be given to the farmworkers.'' Thus, 
these extra-penny agreements are made among several parties: the CIW, 
the fast-food chains, and their suppliers.
    The critical fact is that no one can identify which worker should 
receive an additional payment, nor can the correct payment be 
calculated. If the extra-penny funds are distributed among all of the 
workers, the fact is some will be paid too much and others won't get 
what is due them. This is neither right nor fair.
    Additionally, because the extra payments are considered wages, how 
will the fast-food chains withhold appropriate amounts? How will they 
pay the required employer contributions for FUTA, SUTA and WC, which 
can amount to 15 to 20 percent of the wages paid?
    The Exchange strongly believes that, because the parties to the 
agreements know it is impossible to distribute the correct payment 
amounts to the right workers, the growers' participation would open 
them up to lawsuits from workers who were knowingly treated unfairly. 
Workers also could allege that there is/was a scheme to defraud them, 
and each check issued (allegedly in an incorrect amount) could be a 
separate bank or wire fraud. This is by definition a RICO case. What's 
more, RICO allows plaintiffs to bring additional grounds to allege 
fraud-based activities on whatever size ``enterprise'' they seek to 
attack.
    In addition to the aforementioned concerns related to the penny 
distribution, there are additional problems with the program:
    We believe if our growers participate they will be placed at a 
competitive disadvantage in the marketplace. We believe that ultimately 
fast-food chains and other companies will buy tomatoes elsewhere--most 
likely Mexico--because the extra penny makes Florida tomatoes more 
expensive. If that business shifts offshore, not only will tomato 
harvesters be without the extra penny, they will be without jobs. The 
tomato industry will go away, and Florida's economy will suffer.
    We also are skeptical of any secret agreement that obligates our 
growers but prevents them from seeing the details of the agreement. We 
also believe it is at the very least improper for the CIW on behalf of 
our workers to enter into an agreement that affects the wages we pay 
our workers.
    In addition, we believe that entering into the CIW's penny-per-
pound program would legally tie the growers with each of the other 
parties to the agreement. In effect, our growers, the CIW, the fast-
food chains and their suppliers would be joint employers under the 
Migrant and Seasonal Workers Protection Act. Thus, there is a risk to 
the growers for the actions taken by the other participants.
    The Exchange's members also are concerned that the extra-penny 
program constitutes an attempt to restrain trade. The agreements signed 
so far appear to join independent companies, the customers and their 
suppliers collectively, who in turn have joined forces to demand 
growers participate in the Program or risk losing their sales to their 
customers.
    Finally, it is important to note that the CIW is not licensed or 
registered as a collective bargaining agent as required by law, but as 
a 501(c)(3) charitable organization whose supporters gain favorable tax 
treatment under Federal law. However, we believe that under the cover 
of being a social organization hoping to better the life of its 
farmworker members, the CIW is in fact a ``labor organization'' as 
defined under Florida statutes and that certain employees of the CIW 
are ``business agents'' as defined under Florida statutes. CIW is 
organized and acts for the purposes of improving its members' hours of 
employment, rates of pay, working conditions and grievances relating to 
employment. What's more, the CIW is attempting to negotiate wage 
increases for tomato workers by threatening a secondary boycott against 
the fast-food chains.
    Given the fact that the growers are not mandated to participate in 
the extra-penny program, and based on the facts as we know them, it 
would not be rational, reasonable or in the best interest of the 
growers to join the program.
    We call upon CIW to take on the task of providing a way for Yum! 
Brands and McDonald's to distribute monies to its members and workers 
without involving the growers. CIW, as a representative of its members 
and workers, should gladly accept the challenge of getting this job 
done. If it had figured a way to do this, its member and workers would 
have been receiving checks from McDonald's since last November. 
Alternatively, like our growers do, McDonald's could contribute to 
charities that are helpful to CIW's members and workers, and their 
communities such as Catholic Charities, the University of South Florida 
Migrant Scholarships, the Redlands Christian Migrant Association and 
others.
                               conclusion
    There is no question that harvesting tomatoes is physically 
demanding work that most people do not want to do. Florida's tomato 
producers are grateful to have a steady workforce that allows us to 
provide Americans with a bountiful, nutritious and healthful crop.
    We believe that education, improved housing, fair wages and safe 
working conditions are comprehensive, impactful and long-term solutions 
to improving the lives of farmworkers and their families. We are 
working toward those goals and invite others to join us.
    We have and continue to work with organizations such as Redlands 
Christian Migrant Association, Catholic Charities, University of South 
Florida Migrant Scholarships and others so that we can jointly create, 
develop and execute meaningful programs relating to health care, child 
care, housing and education so that farmworkers and their families have 
a real chance to achieve the American Dream.
    Thank you for giving us the opportunity to present our position on 
these issues.

    Senator Sanders. Thank you very much, Mr. Brown.
    Roy Reyna is a former tomato picker who now manages a farm 
for Grainger Farms in Immokalee, FL. He has spent more than 25 
years working in Florida's tomato fields.
    Thank you for being with us, Mr. Reyna.

             STATEMENT OF ROY REYNA, FARM MANAGER, 
                         IMMOKALEE, FL

    Mr. Reyna. Good morning. My name is Roy Reyna. I worked in 
the Florida tomato fields for more than 25 years. I started 
off, me personally, as a tomato picker, and today I manage a 
farm in Immokalee for Grainger Farms.
    My Mexican-born father was also a farmworker, and we would 
travel as a family to many different areas around the country, 
pick fruits, vegetables. I love working the fields because 
every day I put tomatoes on the tables of our Nation's 
families.
    I am here before this committee to share with you my 
perspective on working and living conditions of farmworkers in 
Immokalee, FL. In my 25-year history of working in Florida's 
tomato fields, I have never seen slavery or in any situation 
where I have or someone was forced to work against their will. 
All, of roughly 90 to 100 percent, of our employees in 
Immokalee voluntarily work for us during our season, which runs 
from November through May. They choose to work for our company 
during the season because we pay them fair wages, offer them 
very inexpensive housing, and treat them with dignity and 
respect.
    Without satisfied workers, no one would pick our tomatoes, 
and our farm would be out of business. That is the way it is, 
really important for us to create an atmosphere of trust 
between us. As a former tomato picker, I completely understand 
the importance of earning and maintaining that trust.
    As you know, farmwork is very hard. Tomatoes have to be 
hand picked. I also recognize that many workers want to be 
rewarded with more money if they work harder. For this reason, 
we will offer our harvester an incentive by paying them 50 
cents per bucket of tomatoes they pick during the harvest. 
Their hard work is definitely rewarded, as it is common for our 
farm tomato pickers to earn $125 for 5, maybe 6 hours of 
picking tomatoes. That is $25 an hour.
    If Mother Nature does not cooperate with us on certain 
days, we still try to do something with our workers. Again, we 
want them to be happy. My personal satisfaction is when a 
worker thanks me for giving them the opportunity if we have a 
great season or earn money. I know we will help them and their 
families in Mexico. Most of our farmworkers send their money 
home to Mexico. Some will want to have a permanent life here in 
the United States.
    As you know, there are a lot of challenges in the community 
of Immokalee. I wish this area had better housing and services 
for its residents. Our company owns brand-new Government-
inspected housing, so our workers have a clean place to live.
    At the end of the day, we want our workers to have the best 
possible experience with us so they will return the following 
season. It is a mutually beneficial relationship. We need each 
other so we can feed our Nation.
    I appreciate the opportunity to present our position in 
these issues. Thank you.
    [The prepared statement of Mr. Reyna follows:]
                    Prepared Statement of Roy Reyna
                              introduction
    My name is Roy Reyna. I have worked in Florida's tomato fields for 
more than 25 years. I started off as a tomato picker and today I work 
as a farm manager for Grainger Farms in Immokalee, FL.
    My Mexican-born father was also a farmworker and we would travel as 
a family to many different areas around the country to pick fruits and 
vegetables. I love working in the fields because every day we are 
putting American tomatoes on the tables of our Nation's families.
                                 issue
    I am here before this committee to share with you my perspective on 
the working and living conditions of farmworkers in Immokalee. In my 
25-year history of working in Florida's tomato fields, I have never 
seen slavery or any situation where someone was forced to work against 
their will.
    All of our roughly 90 to 100 employees in Immokalee voluntarily 
work for us during our season, which runs from November through May. 
They choose to work with our company during the season because we pay 
them a fair wage, offer very inexpensive housing and treat them with 
dignity and respect.
    Without satisfied workers, no one would pick our tomatoes and our 
farm would be out of business. That's why it's really important for us 
to create an atmosphere of trust between us. As a former tomato picker, 
I completely understand the importance of earning then maintaining that 
trust.
    As you know, farmwork is hard work. Tomatoes have to be hand 
picked. I also recognize that many workers want to be rewarded with 
more money if they work harder. For that reason, we will offer our 
harvesters an incentive by paying them 50 cents per bucket of tomatoes 
they pick during the harvest.
    Their hard work is definitely rewarded, as it is common on our farm 
to see a tomato picker earn $125 for 5 hours of picking tomatoes. 
That's $25 per hour.
    If Mother Nature doesn't cooperate with us on a certain day, we 
still try to do something for our workers. Again, we want them to be 
happy.
    I receive personal satisfaction when my workers thank me for giving 
him the opportunity to earn money I know will help him and his family. 
Most of our farmworkers send their money home to Mexico while some will 
want to have a permanent life here in the United States.
    As you know, there are lots of challenges in the community of 
Immokalee. I wish the area had better housing and services for its 
residents. Our company owns brand new, government-inspected housing so 
that our workers have a clean place to live.
    At the end of the day, we want our workers to have the best 
possible experience with us so they will return the following season. 
It's a mutually beneficial relationship. We need each other so we can 
feed our Nation.
    I appreciate the opportunity to present our position on these 
issues.

    Senator Sanders. Thank you very much, Mr. Reyna.
    Let me begin the questioning on an issue that I think is on 
the minds of many Americans. Just coincidentally, as Mr. 
Schlosser indicated, when I was in Immokalee, it just so 
happened that there was another indictment on slavery. I think, 
for the average American in the year 2008, people are 
scratching their heads. They are saying how, in God's name, in 
this great country in the year 2008 are people still being held 
in slavery?
    So I want to start with Detective Frost, who has obviously 
been involved in this issue. Detective, I want to thank you 
very much for the very good work you and your department have 
done. I found your testimony to be very compelling, and you 
testified without reservation that, ``Human trafficking, 
slavery is occurring in the agricultural fields of Florida.'' 
That was in your statement.
    So my question to you is do you believe that there is human 
trafficking happening in Florida agriculture as we speak right 
now, or is this just an aberration? What is going on there?
    Mr. Frost. It is still occurring today. It is probably 
occurring most likely right now while we sit here. Workers are 
held, forced to work, threatened every day if they don't work. 
It is the conditions that they live under, the way they are 
forced into a debt servitude process, or they pay weekly for 
their housing, for their food, substandard.
    At the rate they are paid, it is hard for them to ever get 
out of that debt cycle. So they are continually perpetually put 
into that situation. Then if they decide to leave or decide 
that they want more money from whoever they are working for, 
their crew leader or whoever, then there are the threats of 
violence.
    Senator Sanders. So your point is, this is--there have now 
been, what, five or six indictments with regard to slavery.
    Mr. Frost. Roughly. Yes, Senator.
    Senator Sanders. OK. Your point is it may well be going on 
today, as we speak right now?
    Mr. Frost. Almost assuredly it is going on right now.
    Senator Sanders. Let me also ask you another question. You 
stated in your statement that the system, as it is set up right 
now, allows larger companies, the growers, to ``remain 
willfully blind of any abuses occurring and minimize any 
liability.'' Your testimony, as it happens, mirrors the opinion 
of Judge K. Michael Moore of the Southern District of Florida 
in a slavery case that is quoted in Ms. Bauer's testimony.
    Judge Moore wrote, and I quote from Judge Moore, ``Others 
at another level in the system of fruit picking at a higher 
level are complicit.'' In other words, he was talking about the 
growers.
    Detective Frost, would you agree with Judge Moore's 
sentiment that in these slavery cases there are people higher 
up the economic chain who are complicit and who have cause to 
benefit financially from what goes on?
    Mr. Frost. If they are complicit, they isolate themselves 
from what actually is occurring, and now they are benefiting 
from what is going on.
    Senator Sanders. So the argument that, gee, I don't know 
what is going on, from what I am hearing you say, is not 
holding a lot of water?
    Mr. Frost. No, sir.
    Senator Sanders. As a law enforcement professional, do you 
believe that we need to change the law to prevent the growers 
from shielding themselves from responsibility?
    Mr. Frost. We have to do something. I mean, we have to hold 
them accountable. This is occurring in their back yard. This is 
occurring in our fields. This is occurring in our country.
    Senator Sanders. OK, thank you very much.
    Let me open that question to other members of the panel. We 
will start with Mr. Benitez. Is slavery just an aberration? Is 
it the exception to the rule, or are we seeing a climate and a 
culture in the industry right now which forces the surrender 
situation?
    Mr. Benitez. I believe that with the imbalance of power 
that exists in the agricultural industry today between the 
worker and his boss, the industry allows this type of thing to 
flourish.
    Another thing that we need to remember when we are talking 
here today about the agricultural industry, we are not talking 
about small farmers or small companies. They are huge agri-
businesses that control how the worker works. It is absolutely 
the exceptions that the agricultural industry enjoys today from 
laws that has allowed this problem to grow and to flourish.
    Senator Sanders. Thank you.
    Mr. Schlosser.
    Mr. Schlosser. Yes, I think that the Migrant and Seasonal 
Agricultural Worker Protection Act was passed in 1983 in order 
to prevent growers from avoiding responsibility for what their 
labor contractors were doing. The labor contractors are 
essentially the middle managers in agriculture here. If the 
middle managers are involved in slavery, you would think that 
the chief executives would either know about it or, in some 
way, should be held culpable.
    Right now, there is a loophole in the Trafficking Victims 
Protection Act that makes it more difficult to prosecute 
farmers in these slavery cases. I think that loophole should be 
closed. I have looked at the war on drugs and how the war on 
drugs operates. If there is marijuana grown on a property, that 
property can be forfeited or seized under civil or criminal 
statutes. I might recommend that farmers face the possible loss 
of their land if there are repeated instances of slavery.
    I mean, as I said in my testimony, we are not talking about 
small fringe operators. In the one case, where the labor 
contractor has already served time in a Federal prison for 
slavery, by rehiring that person you are sending a message to 
the workers that slavery really isn't that big a deal.
    Florida has a very long and a very dark history of labor 
relations. As recently as the 1950s, African-American men were 
arrested on the streets in Florida for vagrancy. They were 
fined, and they were put to work in the vegetable fields to pay 
off their fine.
    So this is a problem that can be solved. Certainly in other 
agricultural areas in this country, we are not seeing this sort 
of slavery case. But there is a culture right now that is 
permitting it and not condemning it, and I think there are 
things that Congress can do very simply and easily to end it.
    Senator Sanders. Thank you.
    Ms. Bauer, is what we have seen in terms of the slavery 
cases the exception to the rule, or is there a culture there 
now which allows this to go on?
    Ms. Bauer. There is clearly a culture, and I think we 
should say I echo the comments that have been made before. But 
it is clear that these things happen on a continuum, and some 
of the cases we are talking about are particularly dramatic 
examples. But for every case we hear about, there are dozens, 
hundreds of other cases with similar kinds of power 
relationships.
    I mean, there are cases where--we have represented workers, 
for example, who when they are recruited are required to leave 
the deed to their home with a recruiter in Guatemala. Now when 
I brought a case like that to the Government, they have said, 
``Well, that doesn't rise to the level of slavery.'' That is 
not bad enough. There were thousands of workers in that 
circumstance.
    So I think that we have to recognize that there are these 
really terrible, dramatic slavery examples, and then there are 
kind of less dramatic, but still incredibly oppressive 
circumstances that, in effect, amount to forced labor that are 
extremely common and, in fact, close to the norm in many 
industries.
    So what we really need to do is take a very hard look not 
just at the law and the enforcement, but what is really 
happening in the fields, what is happening in the fields and 
what is happening with workers and what is the totality of 
circumstances that workers are experiencing because it is--I do 
not believe that the American people would be comfortable if 
they knew how their food and other industries are operated, how 
their food is being produced. I don't think people would be 
comfortable with this, and they would not want to eat food that 
had been produced in this way.
    Senator Sanders. Mr. Brown, I want you to respond in any 
way you want. But I did want to just start off with the 
question. In your testimony, you indicated that you are opposed 
to slavery. You are appalled by slavery. Yet, the truth of the 
matter is that Immokalee is not a huge community. There aren't 
thousands of growers. It is a fairly small community of 
growers.
    How could it be that you, who know the industry intimately, 
were completely unfamiliar with what was going on in terms of 
slavery, was shocked every time that a slavery case came up? 
Maybe you might want to comment on Mr. Schlosser's point that 
within the industry, a gentleman who was let out of jail for 
having served time for slavery was rehired by the industry 
again? Could you respond to some of those questions, please?
    Mr. Brown. Certainly, Senator. First of all, we are on the 
same side on the issue of slavery. We are as opposed to slavery 
as you are. We are an extremely progressive industry and moving 
forward with the help of McDonald's and a partner in that 
process in setting up systems that will allow for third-party 
audits entering our farms, interviewing our farmworkers to, in 
fact, search out those conditions that you are referring to if 
they were occurring.
    To date, in 2 years of audits by third-party entities under 
the SAFE program, we have not found those cases to exist in our 
commercial tomato industry. The case that a member of law 
enforcement was referring to earlier was, in fact, an 
individual family that was enslaving these folks for the 
enrichment of their own enterprise, and they were not involved 
in the commercial tomato industry.
    We would ask the Sheriff 's Department and the trafficking 
program to come forward with us in a joint program to try, in 
fact, to educate our industry and to inform our workers of 
those conditions that warrant trafficking and slavery in our 
industry or in our State, so that we can provide a better-
informed platform to root out any of those circumstances that 
would be typical of human trafficking or slavery in our 
industry.
    Senator Sanders. Again, I just--Immokalee is not a very, 
very large community. My guess is, you know quite well all of 
the growers. Would that be a fair statement? Do you know those 
guys pretty well?
    Mr. Brown. I know most of the tomato industry, but there 
are numerous other industries in agriculture based in 
Immokalee.
    Senator Sanders. Right. But it just seems to me, given your 
statement that you are appalled by slavery, that you in the 
past have not come up with any effort to expose slavery. In 
fact, as we have heard, somebody in the industry actually hired 
somebody who was freed from jail for slavery charges. What kind 
of statement does that make to the community?
    Mr. Brown. I believe, if the Senator would explore that 
issue further, when that individual was identified as a prior 
convicted individual, the individual was released from 
employment by that company. They acted in a prudent fashion at 
that point.
    Senator Sanders. Well, he was identified. I gather it 
wasn't much of a secret. The fellow came out of jail.
    Mr. Brown. We don't do background checks on every 
individual that works on every farm, Senator.
    Senator Sanders. OK. Mr. Reyna, did you want to comment on 
this issue of slavery?
    Mr. Reyna. No. The only thing I can say is I have never 
seen it, but it is a shame it is going on in Immokalee.
    Senator Sanders. You have never seen it. You have been in 
the industry for 25 years, and we have Detective Frost saying 
not only has it gone on, he suspects it is going on today. But 
that is something that you----
    Mr. Reyna. Not at my farm. I mean, not as far as I know of, 
and I have never seen it, and it is a shame.
    Senator Sanders. Let me move on to another issue, if I 
might? That is, Mr. Brown, you stated in your testimony and 
just repeated a moment ago, that to ensure that the workers are 
treated fairly and paid directly, growers participate in the 
SAFE program, which you describe as ``an independent, nonprofit 
organization that independently audits and certifies fair, 
legal farm labor practices in the agricultural industry.'' Is 
that kind of what you said?
    Mr. Brown. That is correct, Senator.
    Senator Sanders. OK. Well, my staff did a little bit of 
quick research here, and maybe you can help me and tell me if I 
am wrong. But when we pulled up the names of the board of 
directors of SAFE, we found that Mike Stuart, the President of 
the Florida Fruit and Vegetable Association, serves on that 
board. Is that correct?
    Mr. Brown. That is correct, sir.
    Senator Sanders. We also found that, according to the Web 
site of a Florida Fruit and Vegetable Association, which is 
headed by Mr. Stuart, ``they are responsible for helping 
growers meet labor needs while keeping costs down.'' That was 
on their Internet.
    Now, as it happens, there is also another person on the 
board of this independent organization. His name is Reggie 
Brown.
    Mr. Brown. That is correct.
    Senator Sanders. Would that be you, sir?
    Mr. Brown. Yes, sir.
    Senator Sanders. OK. So I think some people might ask if we 
have an independent board, independent of the industry, how 
does it happen that people like yourself and Mr. Stuart would 
be sitting on this ``independent'' board?
    Mr. Brown. Senator, in order for an industry to exercise 
progressive leadership, sometimes the industry leaders need to 
step forward in establishing programs that, in fact, move the 
industry forward into the future.
    Senator Sanders. Now that is certainly true, but that 
doesn't make it an independent agency. In other words, if you 
want to--it would seem to me, as having some experience in 
organizations, that if the growers wanted to establish an 
organization to do A, B, and C in a number of things, that is 
one thing. But to call it an independent third-party agency 
when it is dominated by the industry itself seems to suggest 
that it is not quite independent.
    Do other people maybe want to comment on the independence 
of that organization? Any other comments on that?
    Mr. Schlosser. Well, I think it is interesting that in the 
2 years of SAFE, they have not found any instances of 
involuntary servitude, but clearly, the involuntary servitude 
was going on. The latest case, Senator Sanders, was happening 
right in the middle of the town of Immokalee. We walked by the 
house where people were being enslaved. So it was present in 
clear sight.
    I think a truly independent monitoring group would be the 
Coalition of Immokalee Workers, and you would think that if 
this industry is so concerned about slavery, they would work 
closely with the group that has been involved in investigating 
six of the seven cases of slavery in Florida in recent years, 
which is the coalition.
    I also want to make clear that this involuntary servitude 
is not being practiced by all of the tomato growers or all of 
the tomato farmers, and I think there are farmers who are 
honest and decent. But it is unfair to them to have to compete 
with farmers who are employing and profiting from slavery, and 
that is why this needs to change. I think, again, it can be 
changed very easily.
    Mr. Brown has talked about some great hardship that would 
be imposed by a penny a pound extra for migrants and careful 
monitoring by the coalition. This isn't a mandatory 
requirement. It is simply farmers, who wish to sell to these 
fast food chains, could participate in this program, and I 
don't understand why that would upset Mr. Brown so much if 
farmers want to participate----
    Senator Sanders. We are going to explore that in a few 
minutes.
    Mr. Schlosser. Yes, great.
    Senator Sanders. What I wanted to get to now is another 
area of serious differences of opinion, and that is the issue 
of wages and how much farmworkers are earning.
    In his testimony, Mr. Brown says that, ``Tomato harvesters 
have the opportunity''--is the word that he used in his written 
testimony--``to earn more than double the Federal minimum 
wage.'' He goes on to testify that, ``Tomato harvesters' wages 
potentially can exceed by a considerable margin the hourly wage 
for most workers at fast food restaurants.''
    Then Mr. Brown testified that, ``Based on payroll records 
our members submitted to the Federal Government for the last 
growing season, the average rate was between $10.50 and $14.86 
per hour for tomato harvesters.
    For the record, I would say that it sounds to me like this 
carefully worded, caveat-laden testimony about what workers are 
making stands in contrast with the unqualified assertions Mr. 
Brown made in meetings that he and I and others had held 
previously. I didn't see all those caveats about ``potential'' 
and so forth.
    Furthermore, let me quote from the Florida Tomato Growers 
Exchange own Web site, which says in no uncertain terms, that--
this is on their Web site.

          ``Florida tomato harvesters earn an average of $12.46 
        per hour according to 2006-2007 payroll records 
        required by the Government. Florida tomato harvesters 
        earn more than double the current Federal minimum wage 
        of $5.85 per hour and nearly double Florida's minimum 
        wage of $6.79 per hour.''

    And that is the Florida Tomato Growers Exchange Web site.
    Ms. Bauer, let me ask you to begin this discussion. In your 
testimony, you stated that workers you interviewed claimed that 
they didn't make anywhere near as much as what Mr. Brown has 
asserted. Based on your interviews with Immokalee workers and 
your work in this field, is the problem that the workers that 
you have talked to were just very slow workers, not very 
competent workers or, in fact, is there another explanation as 
to the discrepancy here?
    Ms. Bauer. There is clearly another explanation, Senator. I 
mean, what the workers that I interviewed told me is consistent 
with several decades of experience I have working with 
farmworkers and with kind of general practices.
    We handle wage and hour cases in our office, and what the 
workers described is what we see in wage and hour cases. When 
piece-rate workers are paid, their hours are routinely 
falsified. That doesn't happen in every setting. That doesn't 
happen with every farm or every industry. But it is certainly 
what the workers in Immokalee were describing to me. So that 
workers on the same crew, working identical hours will have 
their pay reflect different numbers of hours, widely disparate 
hours, based on how productive they are.
    Senator Sanders. You have personally spoken to workers who 
have found themselves in this situation?
    Ms. Bauer. I have personally represented workers who have 
found themselves in that situation.
    Senator Sanders. But one might ask, that sounds like on the 
surface this is grossly illegal?
    Ms. Bauer. It is----
    Senator Sanders. So why aren't these workers going before 
the law or going to their employer and saying, ``Look, two 
workers working the same hours, yet our pay slips are very 
different?''
    Ms. Bauer. It is clearly illegal. But it is more common 
than any of us would like. It is extremely common in the 
agricultural industry that workers' pay stubs do not reflect 
the actual number of hours that they work. In my written 
comments, I express in further detail the kind of tremendous 
structural barriers and obstacles a worker will have to 
enforcing their rights.
    There is a very dramatic decrease in wage and hour 
enforcement, in over the past 15 years. As a practical matter, 
the worker's ability to sort of have lawyers represent them has 
been eviscerated by the LSC restrictions and by lots of other 
obstacles that exist. There are just tremendous fears of 
retaliation workers have that are wholly warranted by the fact 
that if they complain, they will be fired.
    Senator Sanders. Well, how easy is it for employers to 
falsify the wage and hour records of their employees?
    Ms. Bauer. It is very easy without real government 
enforcement, which is the situation we find ourselves in now. I 
mean, we have a case, an agricultural case which we had an 
expert go through the records and say, ``based on these, it is 
clear to me that I see patterns of falsification.'' There are 
ways in which people who are on the same crew are working these 
kind of wildly disparate hours, and this doesn't make sense.
    If anybody was coming in and looking at this, they would 
know that the people who are riding on the same bus together to 
the fields are, in fact, working identical hours. So we 
certainly see that, and the problem is that there are such 
tremendous obstacles to workers enforcing their rights, that we 
really need to take a look at what is happening in kind of a 
different approach. Much more enforcement is needed.
    Senator Sanders. OK. Let me ask Mr. Benitez this question. 
Mr. Benitez, you have heard Mr. Brown's statement today. 
Perhaps you are familiar with the Florida Tomato Growers 
Exchange own Web site, and they say again--let me repeat this. 
``Florida tomato harvesters earn an average of $12.46 per hour 
according to 2006-2007 payroll records required by the 
Government.''
    So my question to you is does that seem right to you? Does 
that seem to be the kind of money that people are making, as 
you talk to workers and to the degree that you have familiarity 
with what the tomato pickers are earning?
    Mr. Benitez. To begin with, a case was just resolved, a 
complaint like this, with one of the large tomato growers, and 
it has to do with wages that weren't paid.
    If you were to really earn $12 an hour, you would have to, 
as was already mentioned, pick a bucket of tomatoes every 2 
minutes and 11 seconds. Senator, you will remember from your 
visit to Immokalee, when we went to visit a field, the workers 
had arrived there at 7 a.m. They got out of the bus, and they 
sat down and waited until the dew was dry before they began 
picking.
    That day looked like it was going to be a good day for 
picking. But many days you arrive at the fields, and it begins 
to rain before you can even begin, and you are taken back home 
without earning a single penny. Some days, when you are able to 
work only 3 or 4 hours, you will return home having earned 
maybe $20.
    We have seen pay records, paychecks from workers who worked 
not 3 or 4 days a week, but 7 days a week, and their paycheck 
says that they only worked 18 hours. What usually happens is 
that your time is only counted from when you fill up that first 
bucket to when you empty the last bucket.
    You have to count your tickets when you finish harvesting, 
and that takes an hour or maybe longer. There are a lot of 
factors that you have to consider when you want to say that 
workers can make $12 an hour. Realistically, it is an 
impossibility.
    Senator Sanders. Thank you.
    Mr. Brown, did you want to comment on this?
    Mr. Brown. The reality of harvesting tomatoes, the 
piecework system, at the 45 to 60 cents a bucket, depending on 
the condition of the crop, is, in fact, a way for the worker to 
obtain maximum income for his labor. It is an incentive reward 
system. If the worker is not working picking tomatoes and is 
working at another task on the farms, we are bound by law to 
pay $6.79 per hour, which is the Florida minimum wage.
    If, in fact, our friends in the CIW are aware of 
miscounting or miscrediting of work hours, there are laws that 
are enforceable in our State, and I would encourage them to 
report those kinds of activities to Wage and Hour and let the 
Government who is the, in fact, enforcer of the law become the 
regulator of this system.
    Senator Sanders. Well, I think you heard from Ms. Bauer 
that apparently that is not quite as easy as it looks on the 
surface. Give me a rough idea, Mr. Brown--let us get beyond the 
hourly wage. At the end of 40 hours a week, what do you figure 
the average tomato picker makes? I know it depends on weather, 
and it is going to be up and down. Give me a rough guess.
    Mr. Brown. The typical harvesting period during the week 
will not be 6 or 7 days a week under most growing conditions. 
You are probably talking about working 25 to 30 hours as a 
harvester. Let us just assume from the standpoint, Senator, 
that the average wage is $12. So if you work 30, that is $300 
and some--30 hours a week at a $12 wage would be, what, $360 a 
week.
    There may be other employment on the farm for that same 
farmworker, or he may work for other entities during that week 
other than the farm he is harvesting tomatoes on for 4 or 5 
days and have additional income.
    Senator Sanders. That might be difficult because the 
assumption is when you get up in the morning, you are going to 
go to work picking tomatoes. I gather it is not a Monday, 
Wednesday, Friday, 9 o'clock to 4 o'clock, and then you have 
time for other work, is there?
    Mr. Brown. In some circumstances, if a farm is not 
harvesting tomatoes today or tomorrow, and there are times when 
we actually do not harvest for 2 or 3 days depending on weather 
conditions and planting patterns, those workers will either 
work for those farms on other tasks, or those workers may, in 
fact, work for other farms in other enterprises. They may very 
well be--they could be harvesting citrus for those days.
    Senator Sanders. Let me ask you to respond to this again. I 
read this earlier. This is not me. It is not Senator Kennedy. 
It is not Senator Durbin. This is the St. Petersburg Times, a 
paper I have no familiarity with other than I saw this 
editorial. This is what they say.

          ``Is it really going to take an act of Congress to 
        get Florida's tomato pickers a raise? The men and women 
        who work the fields in Immokalee earn 45 cents on 
        average for every 32-pound bucket of tomatoes 
        harvested. It is a meager wage that has not been raised 
        in more than 20 years. Yet when a couple of fast food 
        giants generously agreed to pay workers an added penny 
        per pound, the Florida Tomato Growers Exchange 
        sabotaged the deal and has refused to negotiate even 
        after congressional leaders offered to be 
        intermediaries.''

    The editorial concludes,

          ``The truth is that Florida's migrant farm laborers 
        are among the worst-paid workers in the State. They 
        haven't had a piece-rate increase in a generation, and 
        the growers exchange wants to keep it that way even 
        when someone else is willing to foot the bill.''

    Do you want to comment on that?
    Mr. Brown. Senator, that is one view. Ours is different. We 
are, in fact, paying fair wages, and we are treating our 
workers fairly. In fact, the Florida Tomato Growers Exchange 
does not object to the penny a pound being paid by McDonald's 
or Yum! Brands. We simply do not wish to participate in the 
distribution of those monies for the legal reasons we have 
outlined.
    Senator Sanders. We are going to get to that in a second. 
But again, please respond. St. Petersburg Times says, ``The 
truth is that Florida's migrant farm laborers are among the 
worst-paid workers in the State.'' True or not true?
    Mr. Brown. Our migrant laborer piece rate, Senator, has 
changed in the last 20 years. It has risen from 30 to 35 cents 
in the mid-1980s to 45 to 60 cents today. In fact, our 
farmworkers that are harvesting tomatoes are making fair wages 
that are competitive, and we are blessed with the opportunity 
that those workers return by the thousands to our farms every 
year to earn those wages to send home to their families in 
Mexico.
    Senator Sanders. You consider these wages to be fair wages?
    Mr. Brown. Yes, sir.
    Senator Sanders. OK. Anyone else want to comment on the 
``fair wages'' that the workers there are getting?
    Mr. Schlosser. I would just say that repeating that 
something is a fact doesn't make it a fact. There is a great 
deal of involuntary labor. Certainly, Senator, when we were in 
Florida and Immokalee and talking to workers away from labor 
contractors and growers, we didn't meet anyone who was earning 
$12.50 an hour.
    Senator Sanders. Yes, Ms. Bauer?
    Ms. Bauer. Senator, I just wanted to follow up that not 
only are the conditions that workers described unfair, they are 
often illegal. The kinds of not being paid for waiting time and 
the falsification of hours, these are clearly violations of the 
law. I spoke briefly about how the law doesn't protect workers 
nearly as well as it should, but even with the minimal 
protections that exist, we are seeing really rampant kind of 
wage and hour violations.
    Senator Sanders. Mr. Benitez.
    Mr. Benitez. I just want to clarify that agricultural work, 
being a farmworker, is absolutely a full-time job because you 
are required to be available to the industry when they need you 
to work. If one day you went to look for work and there wasn't 
work that day, you still have to be there tomorrow to look for 
work. Because if you miss one day looking, then you won't be 
offered a job the next.
    So I would like to know from Mr. Brown how much turnover 
they have, how many workers they have working in the fields now 
that were the same workers 20 years ago if the wages are so 
good to keep workers?
    Senator Sanders. Mr. Brown, did you want to comment on that 
question?
    Mr. Brown. Certainly, Senator. Because our jobs are 
basically entry-level jobs for unskilled workers in the 
American economy, over the last 20 years, there have been 
thousands of individuals that have come in as farmworkers and 
migrated to better jobs and better opportunities. We have 
supported thousands of kids in educational programs and 
scholarship programs to, in fact, enable them to move up and 
achieve the American dream.
    Senator Sanders. It seems to me here, Mr. Benitez raised 
this issue, you are suggesting--correct me if I am wrong--that 
in the course of a week, people may work 20 or 30 hours. Is 
that correct?
    Mr. Brown. In the task of harvesting tomatoes.
    Senator Sanders. Right. Then if they, as I understand what 
you said, they have time left over when they are not working in 
the fields to earn income doing something else?
    Mr. Brown. There are situations where those workers may, in 
fact, do other jobs such as pull plastic, stake tomatoes, tie 
tomatoes.
    Senator Sanders. Mr. Benitez has suggested that, in fact, 
people, if they are going to be in the industry, if they are 
going to do the work, have to report to work and be available 
for work every single day. This is not like a Monday, 
Wednesday, Friday situation, where one can plan to be somewhere 
else on Tuesday and Thursday. Isn't that true?
    Mr. Brown. In some situations, that may be the case where 
that worker is basically in the job market every day. In some 
situations, we may have farm operations that, in fact, may 
release their work crews for a day to work for someone else 
when they are not planning to have work available. This is a 
very seasonal-related employment system, and the weather and 
the circumstances of producing a crop in Mother Nature's 
outdoors is challenging at times, Senator.
    Senator Sanders. But the key point here is, of course, it 
is a seasonal operation, but this is not a 5-day, in most 
cases, or 6-day a week job. This is a job where wages are low, 
and people have got to be available to do that work and yet 
only accumulate 20 or 30 hours, which I think indicates why 
overall income is so abysmally low.
    I wanted to pick up on another point, and that is something 
that confused me, Mr. Brown, and I would like some 
clarification. You state in your testimony that labor 
contractors are employed by growers?
    Mr. Brown. Labor contractors are paid by the grower. In 
many cases, they operate as employees of the farm's crew 
leaders, but they may very well be licensed labor contractors 
under the Federal law.
    Senator Sanders. Has this situation changed? What I would 
like an answer from you on is, Is your labor contractor an 
employee of the farm, or is this an independent contractor?
    Mr. Brown. Under our SAFE program, the labor contractor is 
an employee of the farm, and the employees are paid directly by 
the farm, OK?
    Senator Sanders. They are employees of the farm.
    Mr. Brown. This is a step forward in the progressive 
industry, a step forward in addressing some of the issues of 
concern. I believe Ms. Bauer would also acknowledge that if 
they were not employed directly by the farm, we would be joint 
employers regardless under MSWPA. Am I not correct?
    Ms. Bauer. We would certainly acknowledge that.
    Mr. Brown. The industry, I think, is fully aware of that 
circumstance.
    Senator Sanders. Let me ask you this. This is a new 
development, yes? How long have these contractors been, in 
fact, employees of the growers, and were they previously 
independent contractors?
    Mr. Brown. The labor contract situation is a system that 
has been in place in Florida for decades, and the industry's 
progressive step forward in creating SAFE as a mechanism to try 
to address these kinds of concerns and to open our companies up 
for third-party audits to a firm that we are, in fact, not 
participating in these acts and that our workers are, in fact, 
being treated fairly and in a positive, constructive working 
environment, are not intimidated or harassed, has been part of 
the process of our industry exercising leadership.
    Senator Sanders. Did anyone else want to comment on Mr. 
Brown's statement?
    Ms. Bauer.
    Ms. Bauer. Well, I would just say that I find that Mr. 
Brown's reporting of the wages and the conditions experienced 
by farmworkers leads me to wonder about whether he actually has 
any information about what farmworkers lives are like in the 
real world. I mean, it seems to me that at best one can say 
that the comments are disingenuous to say that workers are, in 
fact, earning $12 an hour.
    It would take very little time for someone out in the field 
talking to workers to realize that those statements are simply 
not true in the real world.
    Senator Sanders. OK. Let me move on to another area. We 
have heard a lot about some of the large fast food companies 
attempting to address this problem. We have letters in the 
public record now from both Yum! and McDonald's talking about 
their willingness to pay an extra penny a pound to improve 
wages for tomato pickers.
    Mr. Brown, let me ask you this. You state in your testimony 
that your growers do not want to participate in the penny per 
pound program with Yum! and with McDonald's. Is it not true 
that two of your member growers voluntarily participated in 
this program with Yum! Brands for 2 years?
    In other words, you say that they don't want to do it, but 
is it, in fact, true that two of your growers did participate 
in that program with Yum! for several years?
    Mr. Brown. For a period of time, there was some limited 
participation in the Yum! Brand effort, and those efforts were 
ceased when legal review and legal issues were fully explored 
by those companies.
    Senator Sanders. Mr. Brown, you indicate now and you have 
in your written testimony that you believe that this penny a 
pound program is illegal. Is that----
    Mr. Brown. We believe involvement in the penny a pound 
program in the payrolls of our companies, where we knowingly 
know that we do not know and cannot track which worker picked 
what tomato--Senator, they do not come with labels in the 
field. If we involve ourselves in a program as it is outlined 
and has been demanded of us by the quick-serve restaurant 
industries and their distributors, we believe we would be in 
violation of the law.
    Senator Sanders. Mr. Brown, let me ask you this. Is this 
legal opinion your idea, or have you gotten legal opinions from 
attorneys who know something about this issue?
    Mr. Brown. Senator, we have purchased legal opinions from 
legal firms in this country to affirm those opinions, yes.
    Senator Sanders. Let me just mention to you, Mr. Brown, 
that you might be interested to know that according to Mr. 
Blum's written testimony to the committee, ``Yum! Brands''--and 
this is, as you know, not a small company. This is a huge 
corporation that, I gather, has the money to hire expert legal 
advice. That he writes that, ``Yum! Brands attorneys are fully 
confident that the agreement is legal.''
    In addition, this committee has a letter signed by 26 law 
professors from around the country, which states in relevant 
part, and let me quote you this.

          ``The ostensible legal concerns of the growers 
        exchange are utterly without merit. Growers who comply 
        with the CIW-Yum! and CIW-McDonald agreements will not 
        violate anti-trust, labor, or racketeering law. The 
        unfounded assertions of the growers exchange should not 
        deter any grower from adhering to the CIW agreements, 
        nor should those assertions deter any fast food company 
        or other buyer from entering into similar future 
        agreements with the CIW. The only real----''

    I would like you to listen to this. This is according to 26 
law professors around the country.

         ``The only real anti-trust concern would arise if 
        several growers agree among themselves to not 
        participate in the CIW-Yum! or CIW-McDonald monitoring 
        program.''

    Furthermore, McDonald's, the largest fast food chain in the 
world, sent us a letter, which I will include in the recording, 
stating,

          ``McDonald's USA and our suppliers continue to 
        support the initiative with CIW to pay an additional 
        penny per pound for Florida tomatoes and to arrange for 
        growers to pass the funds directly on to their 
        workers.''

    [The two letters referred to can be found in additional 
material.]

    Senator Sanders. I gather McDonald's also has the resources 
to hire some pretty good lawyers.
    Furthermore, in addition to nationally recognized law 
firms, Kramer Levin Naftalis & Frankel and Simpson Thacher & 
Bartlett have reviewed this agreement and have concluded that, 
``Any claim that the terms of the Yum! agreement and McDonald's 
agreement violate Section 1 of the Sherman Act appears 
meritless.''
    Mr. Brown, do you really expect this committee to believe 
that the attorneys at Yum!, the largest restaurant company in 
the world, and McDonald's, the largest fast food chain in the 
world, 26 law professors, and 2 highly regarded law firms with 
anti-trust practices are wrong and you are right?
    Mr. Brown. Senator, that is one group of legal opinions. 
Our legal opinion is different, OK? Our concern, Senator, is 
not necessarily totally an anti-trust issue. Our concern 
revolves around the potential of a RICO case for knowingly 
mispaying workers when we, in fact, have no way of knowing who 
picked what tomato or to what volumes of tomatoes they have 
picked in marketplace that is very complicated.
    Senator Sanders. All I would suggest to you is that when 
you are dealing with such huge companies--I mean, these are 
multi-billion dollar companies who do not get involved in 
activities that they think are illegal. Not when you are Yum!, 
not when you are McDonald's. We have some leading law 
professors around the country, major law firms who study this 
issue, you might want to reconsider the attorneys that you are 
currently consulting.
    Mr. Brown. I will take your advice under consideration, 
Senator.
    Senator Sanders. All right. Take seriously what these folks 
are saying about the position that you now hold, and I would 
hope that, seriously, you will rethink this issue.
    Other comments on that?
    Mr. Schlosser.
    Mr. Schlosser. One of the crucial points here is that no 
tomato grower is being forced to enter one of these contracts 
with the fast food chains. What Mr. Brown didn't mention in his 
testimony is that the tomato growers exchange has threatened 
fines of potentially hundreds of thousands, if not millions of 
dollars against growers who want to pay their migrants the 
extra penny.
    So if there are tomato growers who are willing to enter 
these agreements with the fast food chains and if there might 
be some minute chance of liability, I don't understand why they 
should be prevented and threatened with fines for paying an 
extra penny that goes to the migrants. I would assume that 
freedom of contract should allow them to enter these agreements 
with the fast food chains and not face this sort of 
retribution.
    Senator Sanders. Mr. Benitez, will you say a word about the 
agreement that existed for a while?
    Mr. Benitez. Of course. The agreement that we had with Yum! 
Brands, and that was working, it required the participation of 
the supplier, the grower. It didn't cost them any money at all. 
The only thing that they had to do was to pass their pay 
records to a third party. That was calculated by the third 
party, the proportion of the full amount of tomatoes harvested 
was the amount that Yum! Brands bought and then compared with 
the number of buckets picked by each worker.
    Those workers were receiving an extra check representing 
that penny per pound based on the number of buckets that they 
picked. It was directly from Yum! Brands. This agreement was a 
win-win-win situation. The workers earned a higher wage and the 
assurance of some basic rights in the code of conduct.
    The companies, the growers were winning as well because 
with the extra penny, that ensures a more stable workforce and 
saves them the cost of having to retrain workers every season. 
Yum! Brands in the situation also wins because from the public 
they have a better social responsibility. They appear more 
socially responsible in front of the public.
    Senator Sanders. Is it your view this program could work 
effectively if other fast food companies also contributed a 
penny a pound?
    Mr. Benitez. So when the agricultural industry, when the 
committee is willing to take off their fine of their members 
and other fast food companies come to the table, I am 
absolutely certain that this agreement--that agreements like 
this can work.
    When more companies enter in and buy more tomatoes, then it 
will be not just a percentage of what the workers are earning 
that is getting paid the extra penny more per pound, but would 
be all of the tomatoes. That is why I suggest to Mr. Brown that 
the Florida tomato committee implements, like they have in the 
past, a surcharge across the board, a labor surcharge.
    Senator Sanders. OK. I just wanted to go back to Mr. Brown. 
Just for the record--I think I know the answer, but I wanted 
the committee to have this on the record. Isn't it the case 
that the Florida Tomato Growers Exchange agreed to impose a 
fine of $100,000 for member growers who participated in this 
penny a pound program?
    Mr. Brown. Senator, the Florida Tomato Growers Exchange is 
a voluntary organization owned and operated by its board of 
directors and members, and they have chosen to implement 
operational policies that standardize procedures and operations 
in the industry. As a contractual performance requirement, 
there is a fine in that process, yes, sir.
    Senator Sanders. That fine is $100,000 for member growers 
who participated in this penny a pound program. Is that 
accurate?
    Mr. Brown. That is correct.
    Senator Sanders. OK. Thank you, Mr. Brown.
    What I want to do now is simply--let me pick up a point 
that I think Mr. Schlosser had raised a moment ago in terms of 
this penny a pound business. Mr. Brown, is it true that the 
Florida Tomato Growers Exchange voted in 2002 to oppose a 
surcharge to cover the cost of phasing out the widely used 
pesticide methyl bromide?
    Haven't Florida tomato growers also imposed surcharges on 
tomatoes for the price of fuel and the wooden pallets you use 
to help box your tomatoes? In other words, is this concept of a 
surcharge a new idea, or is that something that you have been 
doing in the past?
    Mr. Brown. The up-charging of certain items in many cases 
are services performed for the buyer by the shipping company 
that is shipping that product, has been a common business 
practice in the industry.
    Senator Sanders. So the idea of imposing a surcharge is not 
a new concept?
    Mr. Brown. The surcharges or up-charges have been added to 
the industry over time. However, Senator, the reality of our 
marketplace is that in the last 16 years, we have seen imports 
into this country jump by 175 percent in the case of fresh 
tomatoes, while the domestic industry has grown by less than 10 
percent. We are under severe pressure as an industry to be a 
least-cost producer of tomatoes, and the addition of any 
charges to our product basically make us noncompetitive.
    When we are noncompetitive, and our customers go to the 
cheap source of product coming out of Mexico, the industry goes 
out of business, Senator.
    Senator Sanders. Well, believe me, some of us on this 
committee are more than aware of what cheap labor abroad has 
meant for American workers. But that maybe is a discussion for 
another day.
    My question, once again, is in the past, have the tomato 
growers imposed surcharges?
    Mr. Brown. There have been surcharges applied for gassing, 
palletization, and cooling and other issues that are universal 
in the industry. Yes, sir.
    Senator Sanders. OK. Thank you very much.
    Let me just, as we come to the end of this hearing, thank 
all of the witnesses and the Senators who have been with us. I 
happen to think that what we have done today has simply begun 
the process, as Senator Kennedy indicated, in investigating the 
situation among Florida tomato pickers.
    Let me just repeat what Senator Kennedy, who is the 
Chairman of this committee, has said because this is the 
beginning. This is not the end. We have broken ground on this 
issue. We are going to stay on this issue. Most of us on this 
committee think that what is going on in Immokalee in terms of 
the working conditions there is not something that in the year 
2008 should be going on in the United States of America.
    And let me say that given the conflicting discussion about 
wage rates, we need either a congressional or a GAO audit of 
wage and hour records of the growers. As many of you know, the 
General Accountability Office here in the Congress is widely 
respected for their objective work.
    Mr. Brown, would this committee have the cooperation of the 
tomato growers with a GAO audit of wages and hour records?
    Mr. Brown. Senator, we are a very progressive industry, and 
we are willing to open ourselves up to SAFE audits, and we 
stand behind our willingness to provide fair and safe working 
conditions.
    Senator Sanders. I wasn't talking about the SAFE audit of 
which you are a member. I was talking about the General 
Accountability Office of the U.S. Congress. In other words, we 
have heard conflicting testimony today about how much people 
are earning, and I think all of us should try to ascertain what 
the truth is.
    The GAO is a widely respected nonpartisan organization. 
Would you be prepared to work with the GAO?
    Mr. Brown. Senator, as the growers exchange, we would be 
willing to work with the GAO. But there are individual business 
decisions of individual business companies. That would be 
decisions they would make, and I am not in a position here 
today.
    Senator Sanders. You are here representing the exchange. 
Would the exchange be prepared to work with the GAO so we can 
get to the truth? So the next time around, we will be able to 
say this is what the GAO determined were the wages in the 
industry rather than having conflicting opinions.
    Mr. Brown. Yes.
    Senator Sanders. So I am hearing you say that the exchange 
would be willing to work with the General Accountability 
Office?
    Mr. Brown. We would be willing to work with them within the 
limits of our authority. Yes, sir.
    Senator Sanders. Thank you. It seems to me that in 
addition, that we are likely to need to expand protections for 
workers in a number of ways, including adding coverage of both 
the Fair Labor Standards Act and the National Labor Relations 
Act to agricultural workers.
    It seems to me that the testimony of Detective Frost and 
others make it abundantly obvious that we need to make changes 
to the Federal trafficking statutes to address the problem of 
growers and others who are avoiding prosecution by remaining 
willfully blind to the abuses around them. We also need to make 
sure that people cannot escape civil liability to workers who 
are enslaved, abused, or cheated out of wages.
    It seems to me that we should also examine the anti-trust 
implications of the Florida Tomato Growers Exchange's 
activities. That is an area we will want to look at.
    Finally, we need to make sure that slavery, servitude, and 
other abuses in the Florida tomato industry continue to receive 
the attention--both in and outside of Congress--they deserve, 
with the goal of ending this abomination.
    Needless to say, slavery is not something which should 
exist in America in 2008, and needless to say, the horrendous 
wage and working conditions that exist in that industry need to 
be significantly improved.
    Let me just conclude on that note. I thought this was a 
very good start. I want to thank all of the witnesses for being 
here. We look forward to continuing this discussion with you.
    This meeting is now adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                  Prepared Statement of Law Professors
Re: Legality of Tomato Growers' Compliance with Agreements between 
        Farmworkers and Fast-Food Companies

    We are 26 Professors of Law. We specialize in labor law, including 
the antitrust dimensions of labor standards.
    We write this statement in response to statements by the Florida 
Tomato Growers Exchange, which urged its members to refuse to comply 
with certain labor standards for Florida farmworkers. Those standards 
are set out in two agreements between the Coalition of Immokalee 
Workers (CIW) and, respectively, Yum! Brands and McDonald's. The 
statements by the Growers Exchange cited concerns that growers' 
compliance with the two agreements would be unlawful.
    The legal concerns cited by the Growers Exchange are entirely ill-
founded. The agreements between the CIW and the fast-food chains have 
been hailed by former President Jimmy Carter, former Secretary of Labor 
Robert Reich, former National Labor Relations Board chairman William 
Gould, and many other distinguished officials, as well as many eminent 
law professors, including Harvard Law Professor Paul Weiler. In 
addition, the U.S. Department of Justice has reviewed and approved a 
program that is closely analogous to the CIW agreements.
    We issue this statement to ensure that the growers' ostensible 
legal concerns do not serve as a pretext for obstructing the great 
strides that CIW is making on behalf of Florida farmworkers.
    First, some background about the agreements that the Growers 
Exchange challenges:

    In March 2005, Yum! Brands entered into its agreement with CIW, an 
organization of Florida farmworkers who pick tomatoes that go into 
fast-food products sold by Yum! Yum! owns Taco Bell and other fast-food 
chains. The farmworkers do not work directly for Yum!, but instead work 
for large farms (``growers'') that sell their tomatoes to Yum!. (That 
is, the growers are the ``suppliers'' and Yum! is the ``buyer.'')
    The agreement between Yum! and CIW stipulates that growers 
supplying Yum! will not engage in slavery and will adhere to other 
basic labor standards. Yum! and CIW also agreed that they will jointly 
monitor labor conditions to ensure that growers adhere to the 
standards. In addition, Yum! agreed to provide an additional penny in 
wages to farmworkers for each pound of tomatoes they picked. The 
expectation was that growers would cooperate in passing the penny per 
pound to the workers, although Yum! would bear the cost.
    In April, 2007, McDonald's reached a similar agreement with CIW. 
McDonald's also agreed to the creation of a third-party organization 
that will monitor the growers' compliance with the labor standards set 
out in the McDonald's-CIW agreement. McDonald's and CIW agreed that 
they will, at some point in the near future, jointly fashion the 
details of the third-party organization.
    On May 24, 2007, the Growers Exchange, an organization of large 
Florida growers, issued a statement urging its members not to adhere to 
labor standards contained in the Yum-CIW and McDonald's-CIW agreements. 
The brief statement cited ``concerns over Federal and State laws 
relating to antitrust, labor and racketeering.'' According to the 
statement, these ``concerns'' related to ``any labor deal that requires 
tomato companies to adhere to terms and conditions for its employees 
set by unaffiliated organizations.'' The statement provided no details 
or legal analysis supporting those concerns. The Growers Exchange 
subsequently reiterated the assertions made in the May 24 statement.

    In fact, there is nothing illegal about the CIW's agreements with 
Yum! and McDonald's, nor is there anything unlawful about the growers' 
adherence to the standards in those agreements. There are many similar 
codes of conduct establishing labor standards among suppliers of 
products to large producers and retailers in many sectors of the 
national economy. Compliance with those codes of conduct is monitored 
by third-party organizations much like those to which Yum! and 
McDonald's have agreed.
    Antitrust Law.\1\ Authoritative analysis of antitrust law has been 
particularly detailed with respect to recent initiatives in monitoring 
the production of garments and footwear--initiatives that are directly 
analogous to CIW's agreements with Yum! and McDonald's.
---------------------------------------------------------------------------
    \1\ The discussion in this section refers to Federal antitrust law. 
Florida State antitrust law follows federal antitrust precedents. See 
Fla.Stat.Ann. Sec. 542.32; Levine v. Central Fla. Medical Affiliates, 
72 F.3d 1538, 1556 n.20 (11th Cir. 1996).
---------------------------------------------------------------------------
    Two such initiatives bear particular note.
    The first is the multi-stakeholder organization called the Fair 
Labor Association (FLA). In April, 2000, the Nation's highest antitrust 
agency--the Antitrust Division of the Department of Justice--formally 
vetted the FLA and concluded there was no cause to bring an antitrust 
action against it.
    The analogy between the FLA and the CIW agreements is very close. 
The FLA engages in investigations of factories producing garments and 
footwear. It also certifies other third-party organizations to monitor 
the factories' compliance with the FLA Code of Conduct. Many large 
manufacturers and retailers of garments and footwear (such as Nike and 
Reebok) have pledged to buy the products they sell only from factories 
that adhere to the FLA Code. Most of these ``manufacturers'' in fact do 
not produce the clothing and shoes they sell, but instead enter into 
contracts with other corporations owning the factories that actually 
produce the goods. The relationship between a manufacturer such as Nike 
(the buyer) and the factories (the suppliers) is therefore much the 
same as the relationship between McDonald's (the buyer) and the growers 
(the suppliers).
    Together with human rights organizations, labor rights 
organizations, consumer organizations, and universities, the large 
garment manufacturers and retailers created the FLA. All of these 
groups play a direct, ongoing, controlling role in the organization. 
They are, among other things, represented on the policymaking Board of 
the FLA. Hence, many ``unaffiliated organizations,'' to use the 
language of the Growers Exchange, control the third-party organization 
(the FLA) that is responsible for writing the Code of Conduct 
applicable to suppliers and for monitoring and enforcing that Code.
    When the FLA was created, it sought a ``Business Review Letter'' 
from the Antitrust Division of the Department of Justice. Upon request, 
the Antitrust Division issues such Business Review Letters announcing 
its intention to bring or not bring antitrust enforcement actions. In 
its letter regarding the FLA, the Antitrust Division concluded that it 
had no intention to bring enforcement actions against the FLA. The 
letter stated:

        [T]he Department of Justice has no current intention to 
        institute antitrust enforcement action against the 
        implementation of the [FLA's] Workplace Code of Conduct and 
        Monitoring Principles. Under the circumstances you have 
        asserted, it is far from clear that adherence to the Code will 
        have any adverse effect on the prices paid by United States 
        consumers of apparel or footwear. Moreover, to the extent that 
        a firm's ability to advertise compliance with the Code provides 
        useful purchasing information to a substantial number of 
        consumers, it is possible that development of the Code and 
        Monitoring Principles will have a net procompetitive effect.\2\
---------------------------------------------------------------------------
    \2\  U.S. Department of Justice, Antitrust Division, Business 
Review Letter (April 7, 2000), available at http://www.usdoj.gov/atr/
public/busreview/4513.htm. The business review letter formally refers 
to the Apparel Industry Partnership, which subsequently changed its 
name to the Fair Labor Association. When the name changed, the facts 
relevant to the business review letter remained the same.

    The two factors on which the Antitrust Division relied--the de 
minimus effect on consumer prices, and the benefits to consumers who 
wish to buy products made under decent labor conditions--are equally 
applicable to CIW's agreements with Yum! and McDonald's. The labor 
costs of picking tomatoes are an infinitesimal percentage of the final 
product prices of fast-food chains--lower than one ten-thousandth of 1 
percent.\3\ And many consumers wish to know whether the food they eat 
was made under conditions of slavery and other inhumane employer 
practices. Therefore, under the Antitrust Division's authoritative 
analysis, the CIW's agreements raise no antitrust concerns.
---------------------------------------------------------------------------
    \3\ Taco Bell estimates that the CIW-Yum agreement will cost 
$100,000 per year, constituting an infinitesimal percentage of its 
multi-billion dollar annual sales. McDonald's has estimated that the 
CIW-McDonald's agreement will raise labor costs by less than 1 million 
dollars, which is likewise an infinitesimal percentage of its more than 
$20 billion in annual sales.
---------------------------------------------------------------------------
    Furthermore, in the 7 years during which the FLA has functioned, no 
supplier factory has brought an antitrust lawsuit against the FLA or 
its affiliated manufacturers. No supplier factory has brought suit 
alleging that compliance with the FLA Code and FLA investigations 
violates antitrust law. Nor has any supplier factory that failed to 
comply with the FLA Code filed suit alleging an antitrust violation on 
the ground that it was denied sales to FLA manufacturers.
    The second recent initiative that is noteworthy is the Worker 
Rights Consortium (WRC), another monitoring organization in the garment 
and footwear sector. The WRC investigates factories on behalf of 180 
universities in the United States to ensure that collegiate merchandise 
(such as sweatshirts and caps bearing university names and logos) is 
made under decent labor conditions. The market structure in this sector 
is this: The universities license their names and logos to 
manufacturers. In the licenses, the universities contractually require 
manufacturers to comply with University Codes of Conduct, which are 
modeled on the WRC Code with variations from university to university. 
The manufacturers then enter into contracts with supplier factories to 
produce merchandise bearing the university name and logo. The 
manufacturer requires its supplier factories to comply with the 
University Codes of Conduct. Once again, the relationship between the 
manufacturer (buyer) and the factories (suppliers) is directly 
analogous to the relationship between fast-food companies (buyers) and 
the growers (suppliers).
    The WRC investigates supplier factories, writes reports, and 
recommends corrective action for any violations of the WRC Code of 
Conduct and the various Codes of Conduct adopted by the universities. 
On the basis of the WRC investigations and reports, the universities 
demand that manufacturers come into compliance with the Codes. The 
manufacturers, in turn, demand that the supplier factories come into 
compliance with the Codes. If factories do not come into compliance, 
the universities may cut off contracts (licenses) with the 
manufacturers, and manufacturers may cut off contracts with the 
factories. (Many of the manufacturers have also adopted the FLA Code 
and are therefore committed to compliance and monitoring of their 
supplier factories through the FLA protocols as well as the WRC rules.)
    The WRC is controlled by three groups: a student organization 
called United Students Against Sweatshops (USAS), University 
administrators, and an ``Advisory Council'' made up of various experts 
and advocates in the area of labor rights. In addition, when 
undertaking investigations, the WRC collaborates with a variety of 
worker-rights organizations and advocates around the world. Therefore, 
to use the terminology of the Growers Exchange, several categories of 
``unaffiliated organizations'' formulate and enforce Codes of Conduct 
against the supplier factories: the WRC, USAS, the Advisory Council, 
the universities, the manufacturers, and various worker-rights 
organizations and advocates.
    As with the FLA, no supplier factory has brought an antitrust 
lawsuit against the WRC, its affiliated universities, or the 
manufacturers that source from the factory, nor against other, 
compliant factories that benefit from the WRC program. No supplier 
factory has brought suit alleging that its compliance with the WRC 
Code, the University Codes, and WRC investigations violates antitrust 
law. Nor has any supplier factory that failed to comply with the WRC 
Code filed suit alleging an antitrust violation on the ground that it 
was denied sales to manufacturers. Nor has any manufacturer brought 
suit alleging that its compliance or failure to comply with WRC Code or 
the University Codes constitutes a violation of antitrust law.
    The WRC has recently proposed a new policy that would require 
manufacturers to pay supplier factories a price for garments sufficient 
to enable supplier factories to pay a ``living wage'' to their workers. 
The WRC would monitor compliance with the new policy, just as the WRC 
has monitored other standards contained in the University Codes of 
Conduct. The proposed living-wage policy has been subject to extensive 
antitrust evaluation by the preeminent antitrust lawyer in the Nation--
Mr. Donald I. Baker, the former Chief of Enforcement in the Antitrust 
Division of the Department of Justice. In a lengthy opinion letter, Mr. 
Baker concludes that the new policy would not violate antitrust 
laws.\4\
---------------------------------------------------------------------------
    \4\ Mr. Baker's Opinion Letter and supplemental letters are 
available at www.workersrights.org.
---------------------------------------------------------------------------
    Mr. Baker's conclusion rests principally on the fact that no party 
that adopts the new policy--the universities, the manufacturers, or the 
factories--is motivated by profit-maximization or revenue-enhancement. 
The policy, rather, is motivated by the humanitarian goal of improving 
standards for workers in the supplier factories.
    Mr. Baker emphasizes that his conclusion is sound, even if the 
universities are deemed to be competitors with one another, the 
manufacturers are deemed to be competitors with one another, and the 
factories are deemed to be competitors with one another in the market 
for collegiate merchandise. Apart from having the humanitarian goal of 
labor monitoring, the living-wage policy does not require any 
``horizontal agreement'' among the universities, among the 
manufacturers, or among the factories. Rather, the policy is 
implemented by ``vertical agreements.'' That is, the university demands 
that its manufacturers pay a sufficient price to factories to ensure 
they can pay a living wage, and the manufacturer demands that its 
supplier factories in fact pay the wage. These are vertical, not 
horizontal, restraints. Vertical restraints of this kind are lawful--
indeed, they are ubiquitous in supplier-buyer contracting. That is, 
supplier factories typically compete among themselves to supply each 
manufacturer. In order to get the business of a manufacturer, the 
supplier factories must abide by the terms demanded by the 
manufacturer--such as product price, product quality, delivery time, 
and so on. When manufacturers demand that supplier factories adhere to 
the living wage, this is just one more term in the vertical contract 
between the manufacturer and its suppliers.
    Indeed, Mr. Baker emphasizes that if several manufacturers decide 
among themselves not to compete for the business of a university on the 
ground that the university demands that manufacturers comply with a 
Code of Conduct (including the proposed living-wage policy) and submit 
to monitoring, then the manufacturers themselves may stand in violation 
of antitrust laws. The manufacturers' collective refusal to deal may 
constitute a horizontal restraint of trade aimed at securing better 
contractual terms from the university--which constitutes a per se 
violation of antitrust laws.
    By direct analogy, the CIW's agreements do not violate antitrust 
law. If McDonald's and Yum! each require their growers to abide by a 
Code of Conduct, to cooperate in McDonald's and Yum's payment to 
workers of an additional penny per pound of tomatoes picked, and to 
submit to monitoring, these are purely vertical agreements between 
buyer and supplier and are perfectly legal. Under the CIW agreements, 
Yum! and McDonald's do not and need not ``horizontally agree'' between 
themselves to demand the same terms from their suppliers. The 
conclusion is the same, even if Yum! and McDonald's each require their 
suppliers to submit to monitoring by the same third-party 
organization--just as Nike and Reebok require their suppliers to submit 
to monitoring by the same third-party organization. The agreements 
remain purely vertical.
    In any event, even if there were horizontal agreements between Yum! 
and McDonald's or other buyers of tomatoes, such horizontal agreements 
would not violate antitrust laws because they are motivated by 
humanitarian concerns, not by revenue-enhancement or profit-
maximization.
    And, apart from their humanitarian purpose, the agreements simply 
have no discernable anticompetitive effect. No grower is excluded from 
negotiating to supply tomatoes to Yum! or McDonald's; and if a grower 
agrees to supply tomatoes in conformance with Yum's or McDonald's 
respective Codes of Conduct, there is no inefficiency imposed on that 
grower or on growers who reject Yum's or McDonald's demands and decline 
to supply them with tomatoes. The grower that agrees to deal with Yum! 
or McDonald's must simply pass along to its workers the additional 
penny per pound provided by Yum! or McDonald's. Hence, there is no 
anticompetitive effect, viewed from the standpoint of competition among 
the growers.
    Nor is there any anticompetitive effect, viewed from the standpoint 
of competition among the fast-food companies. Indeed, most fast-food 
companies already have codes of conduct to which they demand their 
suppliers adhere. These kinds of codes have become ubiquitous in the 
global economy. Businesses with brand reputations to protect seek to 
ensure that their global suppliers, whether factories, farms, or mines, 
do not unduly exploit workers, abuse animals, or damage the 
environment. Therefore, the market for fast food is already structured 
by the fast-food companies' legitimate efforts to protect their brand 
reputation and act like good corporate citizens. In the CIW-Yum and 
CIW-McDonald's agreements, CIW and McDonald's have simply announced 
that they will add provisions against forced labor to their existing 
corporate codes, and will ensure that workers are paid an additional 
penny per pound of tomatoes picked. As noted above, the effect on 
prices of fast-food products is infinitesimal; and Justice Department 
opinions recognize that such codes have a pro-competitive effect, to 
the extent they inform consumers about the conditions on farms 
supplying their food and enable ethical consumers to satisfy their 
preferences for food made by workers who are not so severely exploited.
    By contrast, if several growers horizontally agree among themselves 
to reject Yum's or McDonald's demands that the growers comply with a 
Code of Conduct, cooperate in Yum's and McDonald's payment to workers 
of an additional penny per pound of tomatoes picked, and submit to 
monitoring, then the growers themselves may violate antitrust laws--
because they are seeking to preclude competition among themselves over 
the terms demanded by each buyer. Indeed, the Growers Exchange has 
threatened to impose monetary penalties on any of its members who 
cooperate with the CIW-Yum or CIW-McDonald's agreements.
    Based on these precedents, the growers' ostensible concerns over 
antitrust law are flatly mistaken. The only real antitrust concern 
would arise if several growers agree among themselves to not 
participate in the CIW-Yum or CIW-McDonald's monitoring programs.
    Labor Law. The Growers Exchange's ostensible ``concerns'' about 
labor law are mystifying. (As with its antitrust concerns, the Growers 
Exchange gives no details or analysis of its labor law concerns.) There 
are simply no plausible labor law issues raised by the CIW-Yum and CIW-
McDonald's agreements.
    It is true that Federal labor law prohibits certain types of 
indirect pressure known as secondary boycotts. For example, if a labor 
union is seeking higher wages from employer A, the union may not engage 
in a strike against employer B (say, a buyer of employer A's products) 
to induce employer B to coerce employer A to raise wages; and the union 
is, in some circumstances, barred from entering into a contract with B 
to cease doing business with A. However, farmworkers are excluded from 
the coverage of Federal labor law. They are therefore not bound by 
Federal restrictions on secondary activity. And, even if Federal labor 
law were applicable to farmworkers, labor law does not prohibit non-
coercive secondary consumer boycotts--that is, the law would not 
prohibit CIW from calling a consumer boycott against a buyer of 
tomatoes to induce the buyer to adopt a Code of Conduct that is 
applicable to tomato growers. But to repeat: farmworkers are exempt 
from all Federal labor laws against secondary action or agreements not 
to deal. Under Florida State law as well, collective boycott of a party 
is only unlawful if those engaging in the boycott act out of malicious 
or punitive motive - when, for example, a group of manufacturers agree 
among themselves to cease doing business with a certain distributor in 
order to increase their own profits or the profits of other 
distributors. The CIW agreements, which are motivated by humanitarian 
goals, clearly have no malicious or profit-driven purpose.\5\
---------------------------------------------------------------------------
    \5\ Margolin v. Morton F. Plant Hospital Ass'n, Inc., 342 So. 2d 
1090 (Fla. Dist. Ct. App. 2d Dist. 1977).
---------------------------------------------------------------------------
    Racketeering. The Growers Exchange's reference to racketeering is 
even more mystifying than its reference to labor law. A party violates 
the Federal racketeering law--the Racketeer Influenced and Corrupt 
Organizations Act (RICO)--only if the party, in association with 
others, commits two or more ``predicate offenses,'' such as kidnapping 
or slavery.\6\ CIW, McDonald's, and Yum! have engaged in no such 
criminal acts. The concern raised by the Growers Exchange is ironic--
since the CIW-Yum and CIW-McDonald's agreements aim to prevent future 
acts of kidnapping and slavery by the growers themselves or by their 
agents.
---------------------------------------------------------------------------
    \6\ 8 USC Sec. Sec. 1961-1962.
---------------------------------------------------------------------------
    In conclusion, the ostensible legal concerns of the Growers 
Exchange are utterly without merit. Growers who comply with the CIW-Yum 
and CIW-McDonald's agreements will not violate antitrust, labor, or 
racketeering law. The unfounded assertions of the Growers Exchange 
should not deter any grower from adhering to the CIW agreements. Nor 
should those assertions deter any fast-food company or other buyer from 
entering into similar future agreements with the CIW.
            Sincerely,

    David Abraham, Professor of Law, University of Miami School of Law; 
James Atleson, Professor of Law, State University of New York at 
Buffalo; Mark Barenberg, Professor of Law, Columbia University School 
of Law; Linda Bosniak, Professor of Law, Rutgers University School of 
Law; Christopher David Ruiz Cameron, Professor of Law, Southwestern Law 
School; Roberto Corrada, Professor of Law, University of Denver Sturm 
College of Law; Marion Crain, Paul Eaton Professor of Law, University 
of North Carolina at Chapel Hill; Kenneth G. Dau-Schmidt, Willard and 
Margaret Carr Professor of Law, Indiana University-Bloomington; Cynthia 
Estlund, Professor of Law, New York University; Catherine Fisk, Douglas 
Blount Maggs Professor of Law, Duke University; Jennifer Gordon, 
Associate Professor of Law, Fordham Law School; Seth Harris, Professor 
and Director, Labor & Employment Law Programs, New York Law School; 
Alan Hyde, Professor and Sidney Reitman Scholar, Rutgers University 
School of Law; Karl E. Klare, George J. & Kathleen Waters Matthews, 
Distinguished University Professor, Northeastern University; Arthur S. 
Leonard, Professor of Law, New York Law School; Carlin Meyer, Professor 
of Law, New York Law School; Gary Minda, Professor of Law, Brooklyn Law 
School; Peter Pitegoff, Dean, Professor of Law, University of Maine 
School of Law; James G. Pope, Professor of Law, Rutgers University 
School of Law; Joel Rogers, Professor of Law, University of Wisconsin 
Law School; Michael Selmi, Professor of Law, George Washington 
University Law School; William H. Simon, Arthur Levitt Professor of 
Law, Columbia University School of Law; Emily A. Spieler, Dean, Edwin 
Hadley Professor of Law, Northeastern University School of Law; Robert 
Steinfeld, Professor of Law and Roger and Karen Jones Faculty Scholar, 
State University of New York at Buffalo; Kendall Thomas, Nash Professor 
of Law, Columbia University School of Law; Lucy A. Williams, Professor 
of Law, Northeastern University School of Law.

    [academic affiliation for identification only]
                               McDonald's USA, LLC,
                                       Oak Brook, IL 60523,
                                                    April 11, 2008.
Hon. Edward M. Kennedy,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Bernard Sanders,
U.S. Senate,
Washington, DC 20510.

    Dear Senators Kennedy and Sanders: Thank you for the opportunity to 
share McDonald's position on Florida tomatoes and our commitment to 
social responsibility.
    In April 2007, with support from the Carter Center, the Coalition 
of Immokalee Workers (CIW) and McDonald's USA, working with our produce 
suppliers, announced plans to work together to address wages and 
working conditions for the farmworkers who pick Florida tomatoes.
    McDonald's USA and our suppliers continue to support the initiative 
with CIW to pay an additional penny per pound for Florida tomatoes and 
to arrange for growers to pass the funds directly on to their workers. 
Despite the response by the growers, McDonald's produce suppliers 
continue to look for ways to achieve these important objectives.
    McDonald's produce suppliers have also been working directly with 
the CIW to finalize a strong code of conduct for Florida tomato 
growers. Additionally, discussions are moving forward between our 
produce suppliers and the CIW to develop a third-party verification 
system of the code of conduct which could be adopted by a broader group 
of purchasers.
    We respect the CIW's commitment to enhancing conditions for the 
workers. All people deserve to be treated with respect. Together with 
our produce suppliers, we remain steadfast in our commitment to 
improving the wages and working conditions for tomato farmworkers in 
Florida.
            Sincerely,
                                      J.C. Gonzalez-Mendez,
                                             Senior Vice President,
                          Chief Supply Chain Officer, North America

    [Whereupon, at 12:05 p.m., the hearing was adjourned.]

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