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7772

ADMINISTRATION OF LAWS AFFECTING FARMWORK

GOVERNMENT* C U M E N TS

S to ra s

e DEC 1 51980

bARREL-L LIBR AR Y

KANSAS STATE UNIVERSITY _

NOVEMBER 13, 1979

H E A R IN G

BEFORE A

SUBCOMMITTEE OF THE

COMMITTEE ON

GOVERNMENT OPERATIONS

HOUSE OF REPRESENTATIVES

NINETY-SIXTII CONGRESS

FIRST SESSION

A Printed for the use of the Committee on Government Operations

88-W3O

U.8. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1880
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COMMITTEE ON GOVERNMENT OPERATIONS

JACK BROOKS , Texas, Chairman

L. H. FOUNTAIN, North Carolina

DANTE B. FASCELL, Florida

WILLIAM S. MOORHEAD, Pennsylvania

BENJAMIN S. ROSENTHAL, New York

FERNAND J. ST GERMAIN, Rhode Island

DON FUQUA, Florida

JOHN CONYERS, JR., Michigan

CARDISS COLLINS, Illinois

JOHN L. BURTON, California

RICHARDSON PREYER, North Carolina

ROBERT F. DRINAN, M assachusetts

GLENN ENGLISH, Oklahoma

ELLIOTT H. LEVITAS, Georgia

DAVID W. EVANS, Indiana

TOBY MOFFETT, Connecticut

ANDREW MAGUIRE, New Jersey

LES ASPIN Wisconsin

HENRY A. WAXMAN, California

FLOYD J. FITH IA N , Indiana

PETER H. KOSTMAYER, Pennsylvania

TED WEISS, New York

MIKE SYNAR, Oklahoma

ROBERT T. MATSUI, California

FRANK HORTON, New York

JOHN N. ERLENBORN, Illinois

JOHN W. WYDLER, New York

CLARENCE J. BROWN, Ohio

PAUL N. MCCLOSKEY, J r., California

THOMAS N. KINDNESS, Ohio

ROBERT S. WALKER, Pennsylvania

ARLAN STANGELAND, Minnesota

M. CALDWELL BUTLER, Virginia

LYLE WILLIAMS, Ohio

JIM JE FFRIES, Kansas

OLYMPIA J. SNOWE, Maine

WAYNE GRISHAM, California

JOEL DECKARD, Indiana

*

>

EUGENE V. ATKINSON, Pennsylvania

William M. J ones, General Counsel

J ohn E. Moore, S ta ff A dm inistrator

E lmer W. H enderson, Senior Counsel

J ohn M. Duncan, M inority S ta ff Director

Manpower and Housing Subcommittee

CARDISS COLLINS, Illinois, Chairwoman

JOHN CONYERS, J r., Michigan WAYNE GRISHAM, California

ANDREW MAGUIRE, New Jersey M. CALDWELL BUTLER, Virginia

EUGENE V. ATKINSON, Pennsylvania OLYMPIA J. SNOWE, Maine

ROBERT F. DRINAN, M assachusetts

E x Officio

JACK BROOKS, Texas FRANK HORTON, New York

J oseph C. L uman, Staff Director

Richard E. Grawey, Counsel

Sharon Sm ith , Clerk

(n)
C O N T E N T S

'W

»

Page

Hearing held on November 13,. 1979_________________________________ 1

Statement of—

Berrington, Craig, Deputy Assistant Secretary of Labor, Employment

Standards Administration; accompanied by Basil Whiting, Deputy

Assistant Secretary, Occupational Safety and Health Administration; David O. Williams, Administrator, U.S. Employment Service;

and Ronald Whiting, Associate Solicitor, General Legal Services— 132

Ebbott, John, director of litigation, Migrant Legal Action Program,Inc.,

Washington, D.C.; accompanied by George E. Carr, chief attorney,

Legal Aid Bureau, Inc., Salisbury, Md.; and Art Read, Camden Regional Legal Services, Inc., Camden, N.J_______________________ 54

Ellsworth, Perry, executive director, National Council of Agricultural

Employers, Washington, D.C.; accompanied by Roderick K. Shaw,

Jr., counsel, Citrus Industrial Council, Allen, Dell, Frank, Tinkle,

Tampa, Fla.; and Roy A. Myers, C-B Foods, Rochester, N.Y______ 3

Letters, statements, etc., submitted for the record by—

Berrington, Craig, Deputy Assistant Secretary of Labor, Employment

Standards Administration:

Budgeted positions data___________________________________ 169

Civil money penalties assessed under the Farm Labor Contractor

Registration Act________________________________________ 138

December 4,1979, letter to Charles Kelso, Esq., submitting answers

to questions concerning application of the FLCRA_________ 147-160

FLCRA budget from fiscal year 1975 through fiscal year 1980___ 135

Information concerning labor standards violations against a certain individual_________________________________________ 138

Information concerning the Westover Labor Camp____________ 162

June 30, 1980, letter to Richard E. Grawey, counsel, Manpower

and Housing Subcommittee, concerning enforcement of the Farm

Labor Contractor Registration Act_______________________ 170-171

Portalatin matter information_____________________________ 167

Prepared statement_____________________________________ 173-186

Regulations, Part 40: Farm Labor Contractor Registration,

Subpart A—Registration ; Subpart B—Administrative Proceedings _________________________________________________ 141-145

Status of Wardell Williams case___________________________ 163

Violations of the Farm Labor Contractor Registration Act found

during fiscal year 1979_________________________________ 135-136

Carr, George E., chief attorney, Legal Aid Bureau, Inc., Salisbury,

Md.: Prepared statement___________________________________ 111-120

Ebbott, John, director of litigation, Migrant Legal Action Program,

Inc., Washington, D.C.:

Prepared statement______________________________________ 78-110

Response to Congressman Maguire’s question_________________ 74-76

Ellsworth, Perry, executive director, National Council of Agricultural

Employers, Washington, D.C.:

Migrant labor camps operated by NCAE employers in 1979, crew

leaders hired, and migrant workers hired__________________ 16-17

Prepared statement_______________________________________ 20-53

Read, Art, Camden Regional Legal Services, Inc., Camden, N .J.: Prepared statement___________________________________________ 121-131

Whiting, Basil, Deputy Assistant Secretary, Occupational Safety and

Health Administration : Prepared statement___________________ 187-193

Williams, David O., Administrator, U.S. Employment Services, U.S.

Department of Labor: Prepared statement____________________ 194-213

(III)
IV

APPENDIXES

Page

Appendix 1.—Statement of the National Food Processors Association___ 215

Appendix 2.—Statement of the Society of American Florists and Ornamental Horticulturists____________________________________________ 232

Appendix 3.—Department of Labor letters to Manpower and Housing Subcommittee relating to enforcement of the Farm Labor Contractor Registration Act_____________________________________________________ 234

Appendix 4.—The Farm Labor Contractor Registration Act of 1963 as

amended ________________________________________________________ 254

«

a

T
ADMINISTRATION OF LAWS AFFECTING

FARMWORKERS

TUESDAY, NOVEMBER 13, 1979

«

H ouse of Representatives,

Manpower and H ousing Subcommittee

of the Committee on Government Operations,

* Washington, D.G.

The subcommittee met, pursuant to notice, at 9 :33 a.m., in room 2203,

Rayburn House Office Building, Hon. Cardiss Collins (chairwoman

of the subcommittee) presiding.

Present: Representatives Cardiss Collins, Andrew Maguire, and M. 

Caldwell Butler.

Also preseht: Joseph C. Luman, staff director; Richard Grawey,

counsel; Sharon Smith, clerk; and Stephen Blackistone, minority professional staff, Committee on Government Operations.

Mrs. Collins. The Subcommittee on Manpower and Housing will

come to order.

This is the first oversight hearing that we have had on the administration of the laws enacted to protect migrant and seasonal farm ­

workers. As we sit in this hearing room today, in November of 1979,

it is appropriate to reflect that the often invisible problems of migrant

workers were vividly brought to national attention 19 years ago with

Edward R. Murrow’s documentary, “The Harvest of Shame.” Three

years later, in 1963, Congress passed the Farm Labor Contractor Registration Act with the intent of correcting the abuses that had been

the traditional lot of farmworkers.

The exploitation so often suffered by farmworkers has become notorious. They are often recruited on the basis of misrepresentations about

the amount of work, tvpe of work, rate of pay, and living conditions.

Housihg provided to them mav be substandard, and expenses for meals

and lodging so inflated that they have little to show for their work.

Migrant workers, of course, are at a severe disadvantage when their

5 work takes them far from their homes and from place to place on a

temporary basis.

Under the 1963 legislation, persons who recruited, hired, or transported such workers were required to register annually with the Secretary of Labor. Proof of liability insurance on vehicles used for their

transportatioh must be shown. Farm labor contractors were also required to inform workers of the conditions of their emplovment and

to post in written form the terms of employment and housing, an important safeguard against hard-to-prove, misleading inducements.

Congress endeavored to erase the issue of worker mistreatment 5

years ago—in 1974—when it broadened the scope of the 1963 act and

(1)
2

strengthened the sanctions because, as the Senate report pointed out,

it was quite evident that the Farm Labor Contractor Registration Act

provided no real deterrent to violations. The Senate report oh the 1974

bill stated that the Department of Labor was allocating only meager

resources for the enforcement of this protective legislation. For this and other reasons, the 1974 amendments extended the act

coverage to farm labor contractors who operated in only one State and

gave the Department of Labor the power to assess heavy civil money

penalties for violations, some of which became subject to prosecution under strengthened laws—under strengthened criminal provisions, r

w

ea

h

l

i

l

c

y. The Farm Labor Contractor Registration Act is the only law

m

h specifically prohibits farm employers from hiring undocu­ ented workers.

The purpose of this hearing is to learn from representatives of

farmers, farmworkers, and the Department of Labor itself regarding

the administration and enfo

#

A

rcement of the Farm Labor Contractor

A

ct, the Occupational Safety and Health Act, and the Wagner-Peyser

ct as it relates to farmworkers. It is my hope that this hearing will

provide current information about the working and living conditions of migrant and seasonal farmworkers, will reveal whether the

w

protective legislation covering that population has been effective, and

ill enable us to determine whether the Department of Labor has used

its resources in economic, effective, and efficient ways.

This subcommittee is aware of the current movement in the Senate

to amend the act in a significant way and hope that these hearings will

further congressional understanding of this important issue and assist

in

M

improving the effectiveness of Federal efforts in this area.

r. Maguire.

Mr. Maguire. Thank you, Madam Chairwoman.

I want to congratulate you on holding these important hearings.

Five years have passed since the law was strengthened, and I think

it is time that the appropriate committee of the Congress have this

kind of oversight hearing. I look forward to working with you on this

very important matter.

Mrs. Collins. Thank you very much, and let me commend you for

b

m

eing the one who suggested that these hearings be held. As you told

e, it was something that you learned about in your work as a Repm

resentative of your home State. You have verv actively looked into this •

atter. You have expressed a great deal of interest, and it is because

of vou—let the record show—that we are having these hearings today. I have just taken a look at the statements which are here. They are

all verv lengthy. Because we have a number of people that we would

like to hear from today, let me advise each of you that your statements, in total, will be placed in the record as they have been written, and ask

that you please, therefore, just give us a brief summary—no longer

than 10 minutes—of the statement that you have written, in your oral

testimony.

Our first witness this morning is Mr. Perry Ellsworth of the National Council of Agricultural Employers. I understand he is accompanied by some people he will introduce when he comes forth.

Please come forward.

Would you introduce those who are accompanying you, please?
3

STATEMENT OF PERRY ELLSWORTH, EXECUTIVE DIRECTOR,

NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, WASHINGTON, D.C.; ACCOMPANIED BY RODERICK K. SHAW, JR.,

COUNSEL, CITRUS INDUSTRIAL COUNCIL, ALLEN, DELL,

FRANK, TINKLE, TAMPA, FLA.; AND ROY A. MYERS, C-B

FOODS, ROCHESTER, N.Y.

Mr. E llsworth. Madam Chairwoman, I welcome the opportunity

to appear before this subcommittee today to discuss the oversight and

to discuss enforcement of certain farm labor laws and regulations by

the Department of Labor.

I am accompanied, on my immediate left, by Mr. Roy Myers of C-B

Foods; and, at the end of the table, by Mr. Roderick K. Shaw, who is

counsel to the Citrus Industrial Council and has his offices in Tampa,

Fla.

Mrs. Collins. Thank you.

Without objection, your full statement will appear in the record.

Mr. E llsworth. I understand that the two matters of concern to

this subcommittee today are enforcement of the Farm Labor Contractor Registration Act and regulations governing housing for migrant

agricultural workers.

When the Farm Labor Contractor Registration Act was in the process of being amended in 1974, the record will show that agricultural

employer organizations made little, if any, input regarding the bills

under discussion. This was because most of us, as we understand the

legislation, though it was designed to tighten control over crew leaders, alternatively called farm labor contractors—those individuals

who were middlemen or body-brokers, as the term has been used by

others.

None of us had any objection to such action, and we agreed that

there were numerous instances of crew leader abuses of the members of

their crews, and we concurred in actions to prevent such abuses.

When the Department of Labor started enforcing the law, employers were shocked to find that, by the Department’s interpretations of

the act’s definition of “migrant worker,” every single agricultural

worker, every farmer and rancher, and nearly every food processor in

the country was considered to be a migrant worker, no matter whether

such persons ever left their homes overnight to perform agricultural

labor.

Individual farmers—small growers—were surprised to learn that,

even though they were exempted from registration as farm labor contractor because they did their own recruiting and hiring, the Department of Labor held that one of their employees would have to register

if that employee drove one of the farmer’s vehicles to take other workers from the vicinity of the farmhouse to the field or orchard for the

day’s work. They were doubly surprised to learn that the farm vehicle

used to transport such workers would have to carry insurance equal to

that required of an interstate carrier such as Greyhound, even if the

farm vehicle traveled 100 percent on farm lands or across farm fields

or through farm orchards.

In one instance, successfully defeated, a compliance officer a ttempted to force the driver of a large field machine to register because
there were workers riding on it during the process of harvesting a

crop.

Agricultural employers were astonished to learn that the Department of Labor interpreted the words, “on no more than an incidental

basis,” in such a way that “incidental” became “accidental.” This was

particularly surprising in light of the intent of Congress that the

phrase apply to persons who utilized a limited portion of their time

for recruiting, soliciting, hiring, furnishing, or transporting migrant

workers.

Corporations have found that even though they are defined as

“persons” in the act, they cannot act personally. Employers are intrigued by the fact that, although for the period including fiscal

year 1977 through the first half of fiscal year 1979 a total of 5,061

citations were issued by the enforcers of FLCRA, only 260—or Just

5.2 percent—were for substantive violations of the act where abuses

were alleged to have occured.

Compliance officers of the Department of Labor are making FLCRA

a law gone wild. There are several illustrations in my formal statement. Others will undoubtedly come to light during the question and 

answer period.

The Department witnesses may well say that many citations were

countermanded by higher authority and no penalties assessed, but I

submit that the mere issuance of a citation is a cause of much concern

to the recipient and takes precious time from his regular duties by

which he earns a living.

To further add to the uncertainties facing agricultural employers,

the Department’s interpretive regulations covering FLCRA have yet

to be published, even though the act, as amended, will be 5 years old

next month.

Mrs. Collins. Would you repeat that? I did not hear what you

said.

Mr. Ellsworth. It is customary, after a law is passed or amended,

that the Department of Labor either issue, in the case of a new law, its

interpretive bulletin which explains it, or amends that interpretive

bulletin. The bill was signed into law on December 7, 1974. We have

yet to see the interpretive bulletin that would guide growers, employers. or even farmworker organizations in exactly what the Department

of Labor believes the law says.

Mrs. Collins. Thank you.

Mr. Ellsworth. As a case in point, an emplover organization presented 21 questions in writing to the Wage and Hour Division nearly

2 years ago and is still waiting for answers. Someone ought to discuss

how to run a railroad with the Department.

The National Council of Agricultural Employers, on behalf of all

agricultural employers, has iust one request to meke to this committee.

Make the Department of Labor enforce FLCRA according to the

intent of Congress or help employers obtain amendments so the act

will do what Congress intended.

Now, in the area of farm labor housing, I would like to first admit

that, all housing is not as good as it should be. That is not quite

perhaps the wav it ought to be said. I would first admit that there

is bad housing in places. There is very excellent housing in other

places.
5

NCAE and other organizations have, over the years, encouraged

their members to build housing to meet Federal regulations and to

exceed those regulations if it is economically possible to do so.

Reference was made today to “Harvest of Shame.” I would point

out that this was a study which was conducted prior to 1963. I forget

the exact date of the report. But over the past 10 to 15 years, there

has been a dramatic improvement in housing across the land. Concrete block buildings and trailer homes are replacing wooden buildings

and housing. Running hot and cold water and inside plumbing are

the rule. The farm labor housing is very frequently inspected by local, State, and Federal officials, one following the other, and usually

more than once during occupancy by workers.

On behalf of this Nation’s agricultural employers who furnish labor housing, and most of it free, NCAE asks that the Department of

Labor work out an arrangement whereby one agency—be it local,

State, or Federal—does the inspection for all rather than having

three or four persons arrive at different times during the farmer’s

busiest season.

NCAE also asks that a certain amount of reason be exercised by 

inspectors and that all concerned realize that violations are often

not discovered the minute they occur and cannot be repaired in the

next minute.

This is merely a very quick summary. My statement has, I trust,

been made part of the record, and we stand ready to answer any questions.

Mrs. Collins. Thank you very much, Mr. Ellsworth.

I found it pretty interesting, just in glancing through your overall statement, that you mentioned something about the total citations

issued, only 260 or 5.2 percent of which were for things that were

really important—such as misrepresentation of workers, knowingly

hiring an illegal worker, improper money payments, improper charges

for workers’ purchases, housing and health standards violations. I

guess the ones for housing and health standards violations were the

second largest number of citations issued, second only to knowingly hiring illegal workers.

On the question of housing, I understand, just from speaking to

staff, that overall the housing is pretty lousy. You mentioned that

there is some good and some bad, but the norm, I guess, is just not

that good.

What has been done to improve the housing in the last 5 years ?

Mr. Ellsworth. As I said earlier, we have had many farm housing

facilities rebuilt. OSHA 1'as come into the picture and has enforced 

the improvement of housing'. I think we have to back off, and T respectfully take exception with you about housing being very lousy,

as a general statement.

Mrs. Collins. Tell me why you would take exception to that.

Mr. Ellsworth. You may take exception to my saying all housing

’s very excellent.

Mrs. Collins. We would like the record to show why it is contrary

to what I have stated.

Mr. Ellsworth. I have no statistics to prove this noint, but let me

call on Mr. Mvers who is iust in the process of building housing for

migrant workers in his facility—one of his facilities—and let him ex-
plain to you what he is doing, which I think is indicative of what is

happening, and the costs his company is going to incur.

Mrs. Collins. Is he really indicative, or is he one of the few who

are making these kinds of changes ?

Mr. Ellsworth. I am very serious about this. I have no statistics to

prove it one way or the other, but I think housing is going on an upward curve of improvement across the country.

Mrs. Collins. Mr. Myers ?

Mr. Myers. We are building new housing. We started changing our

housing back in 1965 or 1966—updating it. As of 1975, it cost us approximately $1,000 a worker to build new housing. This included the

cafeteria facilities and recreation facilities for them.

We currently have bids in for housing that is going to be built starting in January. That will run us $3,000 a man without cafeteria facilities, and cafeteria facilities will probably bring that up to close to

$4,000 per person.

These are concrete block construction facilities with dormitory-type

sleeping quarters, with laundry and bathroom facilities and heating

facilities in the corridor of the building.

I, too, would agree with Mr. Ellsworth that I think housing, in

general, has improved greatly in the last few years.

Mrs. Collins. W hat percentage do you think meets the required

standard, Mr. Ellsworth ?

Mr. E llsworth. I have no idea about an exact percentage, but I

would say it is the great majority.

Mrs. Collins. You cannot give a rough percentage? Your National

Council of Agricultural Employers does not accumulate that kind of

data?

Mr. Ellsworth. No, ma’am. We have not accumulated data as to

what housing meets these standards.

Mrs. Collins. There is a list, on page 19 of your statement, of what

you term substantive violation, including failure to abide by agreement with workers and discrimination against workers who are exercising their rights. Do you think that the fines presently levied for

those offenses are severe enough ?

Mr. Ellsworth. I think $1,000 for discrimination against a worker

that is exercising his rights is probably a pretty stiff penalty for a

great many employers and will result in their thinking twice before

they take any such action again.

Mrs. Collins. What about some of the other penalties that are

levied? Do you know about any of those? Do you know of any cases

where there are people who were given criminal penalties?

Mr. Ellsworth. No, I do not. You would have to get that from

the Department of Labor. I do know this, that there have been employers who have been inspected by compliance officers for FLCRA

who have had citations issued against them which, if the penalties were

levied—and there is sometimes a decision by the Department of Labor

not to issue penalties once thev investigate the particular situation—

have gone as high as $24,000, $30,000 to $40,000 in just the result of one

visit. That is a pretty substantial deterrent or convincer, I would

think.

Mrs. Collins. On page 7 of your statement, you quote an article

that says that the intent of Congress was to control the farm labor
1

contractor. You make the point again on page 19. Are not migrants

also abused by some growers, packers, and large corporations ?

Mr. Ellsworth. I suppose that, on the basis of which your statement was made, ma’am-----

Airs. Collins. Aly statement was made on the basis of yours.

Air. Ellsworth. I could not say there has never been a farmworker abused by a large corporation or by packers. AVe would first

have to define “abuse,” and so on. But let me say that I think, in many

cases, as is evidenced by the statistics here, in that period of time, the

ones I tried to write down were ones where there were fines assessed

because of actions or citations issued because of something which was

determined to be an abuse.

Airs. Collins. I s it your understanding that the act is aimed at

controlling abuses wherever they might occur, or by whomever?

Air. Ellsworth. According to my understanding of the act, it is

to control abuses which may be caused by farm labor contractors—

those who meet the definition of “farm labor contractors.”

Airs. Collins. Nobody else ?

Mr. Ellsworth. Not under this act, ma’am.

Mrs. Collins. That is your understanding?

Air. Ellsworth. Yes, ma’am.

Airs. Collins. All right. AVe will get back to that a little later.

Air. Butler ?

Air. Butler. Thank you, Aladam Chairwoman.

Just as a point of reference, Air. Ellsworth—and we do appreciate

your testimony—when did this committee receive the statement which

you refer to as your formal statement ?

Mr. E llsworth. They got it up here last night, sir. That was by

reason of the fact that I learned about these hearings a week ago,

Friday, I have a very, very small office, and was pushing to get it done.

Mr. Butler. I s it your feeling that you have not had adequate time

to prepare your testimony ?

Mr. E llsworth. In my case, it pushed me. That is not to say that

somebody else might not have been able to do it all right.

Mr. B utler. I am sure we are all anxious that you get your full

story in the record.

I am sure. Aladam Chairwoman, we would have no objection to his

supplementing his testimony ?

Airs. Collins. Not at all.

Mr. Butler. That is right.

I do think that it is a legitimate complaint if you only get a week’s

notice of a hearing.

Mrs. Collins. That is true.

Mr. Butler. I am sympathetic with what you are talking about here

today. I want to understand, however, what is so difficult about registering. Explain that to me.

Air. Ellsworth. Alav I ask Air. Shaw to answer that question, sir?

Air. Shaw. Air. Butler, registration is only one of the many problems under the act. Our understanding of what Congress intended to

do was to protect farmworkers who were being abused—who were

mifrrants.

AVe have many problems with the act which cause a number of citations to be issued, having to do with the question of who is and who is
8

not required to register. These cause enormous problems in the agricultural industry. We have, for example, three tractor drivers, each

of whom are tractor drivers, who all work 12 months out of the year.

They have lived in the locale all their lives. None is the superior of the

other two. There are three ways they can get to the field. One is, each

can drive his own vehicle; a second is that two of them can ride with

the other, either in a vehicle owned by one or in a vehicle owned by the

employer; the third is that they can drive all three tractors back and

forth each day.

In a court case in Florida, three tractor drivers who ride together

in order to save fuel, in a pickup truck, are told that the one who drives

the pickup truck has to register.

It is not impossible for that tractor driver to go out and register,

obviously. But it boggles our mind that he should be asked to do so

when there is absolutely no abuse or potential abuse involved, that we

can envision.

As we read the legislative history, there were a number of kinds of

abuses that the Congress was legitimately concerned about. One of the

foremost was the opportunity for skim, where moneys were paid in

cash to a crew leader for the entire operation, and the crew leader

thereby had the opportunity to skim off more than his legitimate costs. 

That was a concern that Congress had.

This attempts to deal with that. It overreaches in some of the ways

that the Department has interpreted it. We think there should be incentives provided to encourage employers to cause all workers to become their own employees, first of a ll; and, second, to encourage them

to pay each worker directly by check rather than paying off in cash

to someone who would thereby have an opportunity to skim; to encourage them to disclose on the check, as in 6(c) of the act.

Mrs. Collins. Would the gentleman yield?

Mr. Butler. Certainly.

Mrs. Collins. What kind of incentives would you suggest ?

Mr. Shaw. For example, in 6(e), the third from the last sentence

talks about disclosing to the worker, in writing, at the time the payment is made, how much was paid to the farm labor contractor on an

account, either on behalf of the worker, which is the situation where

the employer or user pays cash, part of which really belongs to the

workers and not to that farm labor contractor; and, second, on account

of the labor of the worker. That is a nebulous concept which I will not

argue with here because I am not sure exactly what it means, but presumably it means the part of what the contractor receives on account

of what the worker did, as distinguished from what he received on

account of his need to pay for workers’ compensation insurance, liability insurance, social security, and that sort of thing.

The incentives that could be granted in 6(c), and ones we have suggested before, would be to provide that, if the employer—the user—

caused the workers and the farm labor contractor to become employees—not a loophole but an actual change—and bring them into the

mainstream of Americans, and actually paid those workers directly

by check—if that was done so that the farm labor contractor never had

the opportunity to get his hands on any part of that worker’s money,

so there would be no opportunity for skim, under those circumstances,
9

the need to comply with the disclosure to the worker how much the

contract would be could be eliminated.

I am not suggesting that we eliminate the part that requires the

employer to disclose how many hours were worked or how many fields

were picked—we can do that on computers. We can do that. The difficult thing we run into is the emotional things involved in disclosing

how much a farm labor contractor gets.

A meaningful way to do it is to disclose the rate, but oftentimes

farm labor contractors do other things.

We can make all that move by encouraging the employer to pay

directly by check. If he does that, then this requirement is eliminated.

If he does not do it, keep it in the bill. Just put a caveat in.

Mrs. Collins. Thank you.

I thank the gentleman for yielding.

Mr. Butler. Mr. Ellsworth ?

Mr. Ellsworth. That looks like an end run around your question.

I am sure Mr. Shaw did not intend to do it that way.

Let me point out some one, two, three’s, for you. One, if considered

a farm labor contractor, as this act is interpreted by the Department

of Labor, a farmer or his employee would have to engage in, first off,

registration and being fingerprinted. Secondly, every year he has to

renew that registration. Every 3 years he has to be refingerprinted.

Fingerprinting facilities are sometimes a distance from farms where

farmers work during the day w’hen the fingerprinting facilities are

usually open.

He would then have to abide by all of the requirements placed

against a farm-labor contractor. I will only mention two in passing

because we do not oppose the idea of disclosing to workers at the time

they are hired, in writing, what the terms of employment will be.

But he is then prohibited from hiring any undocumented workers

or, as the act refers to them, “illegal workers.” This, of and by itself,

is not a bad thing, and we are encouraging our members to take every

step to avoid hiring undocumented workers.

On the other hand, in this case, let us suppose that this person has

to register as a farm-labor contractor. He then has to engage in an

exercise of positive identification of the citizenship of each and every

worker, or the legality of that worker to work—if he has an INS

“green card.”

This is very interesting because, as employers, we were clobbered

the other day at a hearing before the Select Committee on Immigration and Policy by a crew leader because a farmer refused to hire the

crew leader because she did not have the positive identification. So, 

it is catch 22 there.

The other thing that is very interesting is this. A farm-labor contractor, under this act, must disclose to the workers how much money

he earns as a result of those workers’labors.

There is, in Pennsylvania, at the Musselman Co., an instance where

the personnel director has been required to register as a farm-labor

contractor. Our question has been: How much does he earn as a result

of the labor of those “migrant workers” that he has hired ? How much

does he disclose ?He is a year-round employee; he is on a salary.

Mr. Butler. You are citing difficulties in complying with the supposed requirements ?
10

Mr. Ellsworth. What happens when somebody gets hooked on this, 

and why do people think they are not farm-labor contractors in the

first place? It is almost like people who think making everyone who

drives a car should register as a licensed cab driver because he might,

at some time, carry somebody for a fee.

Mr. Butler. Thank you. I appreciate your putting that in the

record.

Madam Chairwoman I know I am going over mv time. If you want

me to yield back, I will or perhaps I could go to another series of

questions.

Mrs. Collins. Let us go to Mr. Maguire and then come back to

you.

Mr. Maguire ?

Mr. Maguire.Thank you, Madam Chairwoman.

Gentlemen, I find myself puzzled by the approach to this which

appears to start at the end of the issue that relates to entities rather

than at the aspect of the issue that relates to abuses.

As I undersand it, the 1974 amendments were designed to plug 

what were, after the testimony was received in 1974 by the Senate

committee, perceived to be rather serious loopholes in the law. The

word “personally,” for example, which you describe in your written

statement as having been inadvertently added to the law, as I understand it, was the only change that was made in that section of the law at that time. It was designed, according to testimony that was

received by the Senate committee, to deal with a serious loophole

which allowed certain kinds of entities—in fact, very major entities—

to be outside the purview of the law.

Do I understand your position correctly that you want certain entites to be exempt from the law that relates to abuses and certain other

entities not to be exempt ?

Mr. Ellsworth. I am going to let Mr. Shaw follow up on this one,

if I may, because I think, Mr. Maguire, equity under the law has always been something which anybody should approve.

Our main point, I guess, is that at the time of these hearings, the

Labor Department, for instance, testified that with the 1963 law they

had succeeded in registering only 2,000 crew leaders and that they

had reason to believe there were as many as 6,000 crew leaders, either

in total or not registered—I forget which.

The law was to tighten up on that, and that is why it was changed

in many respects to go from interstate transportation of 10 or more

to the present definition of a “farm-labor contractor.” The term was

still used in those days. The colloquy on the House and Senate floors

and the reports of the Senate and House committees at that time make

constant reference to “crewleaders”—the middlemen, the ones who

according to the statement, abuse both workers and who abuse growers by failing to show when they are supposed to show, and so on.

You have read that material, I am sure—it isin there.

I think our big problem is that that was the direction that Congress

intended the law to take—to get at these people. And the interpretations of it have since changed.

Mr. Maguire. That was perhaps one of the directions.

Clearly, the interstate loopholes were something they wanted to

plug, so that more people who were abused, in fact, were actually cov-
11

ered. And the insertion of the word, “personally,” in the law at that

point seems to have resulted from the kind of testimony that was received, for example, from State officials who urged that all corporate

recruitment activities be required as well. For example, the Wisconsin

Department of State Industry, Labor, and Human Relations suggested to the Congress that, “all recruiters, such as the agriculturerelated food industry, canneries, packing shed workers, poultry processing plant, ginners, and so forth” be covered.

Against that background in the record, what basis would you have

for making the argument that the word, “personally,” was inadvertently inserted into the law in those amendments? Do you have any

basis for that ?

Mr. E llsworth. I would like to have Mr. Shaw answer that question for you, if it is all right with you, sir.

Mr. Maguire. All right.

Mr. Shaw. The legislative history, as disclosed in both the Senate

and House committee reports, Mr. Maguire, talked about the middleman between the farmer and the worker; they talked about the emergence of the farm-labor contractor who comes out differently from

what we find in commerce and industry generally, meaning a person

who intervenes in the middle so that the employee cannot any longer

under that system look directly to his employer.

They list the kinds of abuses they were concerned about on page 2

of the committee report of the Senate. They list those abuses as exaggerating conditions of employment. They are talking about the

middleman who does that, not the employer.

Mr. Maguire. Rut you see, the point is this. Let me interrupt. I have

read your written presentation on this point

Mr. Siiaw. I did not prepare that statement.

Mr. Maguire. Whosever it is, the thing that bothers me is that, from

the point of view of a migrant laborer or potential migrant laborer

who interacts with a person who represents to him or her that certain

conditions of employment will be available at such-and-such a location, it does not much matter to that person whether this “middleman” is in some legal sense a middleman of the sort you are describing,

for example, not permanently employed by XYZ Corp., or, on the

other hand, whether that person is employed by YZ Corp., either

to do this kind of *hmg all the time or a portion of hi« time. It does

not matter to the farmworker what the circumstances of that person’s

legal relationships are. What matters is whether or not the worker is

going to be protected in relation to the representations that have been

made.

You say in your statement that there is less likelihood—I am paraphrasing—that companies of the sort that you represent are going to

be engaged in these kinds of abuses, that people can take them to court,

and so forth, and so on. But there have, in fact, been rather significant

examples of very serious abuses which, if your language were to be

inserted in the law or the changes you have suggested were to be

made—“personally” being taken out—would not be covered under

the law.

I wonder, in that connection, if you have anv comment on the

Abraham v. Beatrice Foods C o m p e l case of 1976 or the Owatana

Canning Company case of 1976. which are frequently cited on the
12

other side of the argument. Do you have any comment on either

of those ?

Mr. E llsworth. No, sir. I happen to have a copy of what I think

you are looking at, and that is the first time I was aware of those cases.

Mr. Maguire. These involve major companies that fall within the

purview of your organization, do they not?

Mr. Ellsworth. I am not trying to evade your question, but I am

not sure whether they do or do not. Owatana Canning Co. is a member

of mine now. It became a member approximately a year and a half ago.

What you have said thus far is something with which we would

not argue. There have been abuses. I have tried to not sit here and

say there have been no abuses by corporate entities. I think what we

are saying is that this law, as enacted and as amended, was aimed at

getting crew leaders and middlemen. There are other laws that cover

the corporations.

In the case of specifying the terms of employment, it does not.

I will buy that.

Mr. Maguire. Yes. It depends exactly what you are talking about.

For example, there may be certain standards with respect to worker

housing under OSHA, but you cannot, as an individual person, take

somebody to court that because you do not have standing under OSHA

law, as I understand it. The only thing that gives you a right to go

after somebody on the housing issue is, in fact, this farm labor contractor law.

So, if a whole category of entities is going to be excluded from

coverage by the changes that you advocate, then we have to deal with

the problem of how people are going to be protected.

Mr. Ellsworth. Under OSHA, sir, anybody can complain to OSHA

about the housing, and OSHA will come out and can assess rather

substantial penalties. The point is that the money paid will go against

the employer, and an employee does not have redress, as such, to obtain

court action. I would agree with that one.

Mr. Maguire. Madam Chairwoman, I am aware that I am absorbing

a good deal of time here, but let me try to conclude. There are so many

things to talk about.

Let us take the issue of “personally” again as an example of what

you are advocating. You also want some other changes in the law

which we do not have time right now to go into. But if you were to

succeed in eliminating that word—and this is the paragraph about

the definition of a farm labor contractor, the people who are going

to be covered by the law—it would then read, “such terms shall not

include any farmer, processor, cauner, ginner. packing shed operator,

or nurseryman who engages in anv such activity for the purpose of

supplying migrant workers solely for his own operation.”

In other words, OK, they are migrant workers. We have agreed at

the start that that is what they are. But then we go on to say that

they shall not be protected as long as somebody is engaging them solely

for their own operation. Is that what you are asking this Congress

to approve?

Mr. E llsworth. I think there are several things that we are pointing out are fallacies in this legislation.

To go back to one other thing, sir, we have talked about migrant

workers------
13

Mr. Maguire. I would like you to focus on that question.

Mr. E llsworth. All right. I am with you.

Migrant workers are—I do not know how you think of the term

when you use it, but it is not the lady next door. But this act would

include that. Thus, an organization cannot recruit local workers solely

for its own operation. Not every organization in this country uses

workers who have migrated to come to work for it. So, the term,

“migrant worker,” has to be very carefully defined.

Under the Department of Labor’s interpretation of it, it is every employee who is ever hired, and we question that.

Mr. Maguire. But the definition of a “migrant worker” is another

, question.

Mr. E llsworth. Except that it focuses on this one.

If we could take out the word, “personally,” in there, we would allow,

for instance, an employer, who, at the present time will personally

> recruit workers, personally hire them, personally pay for their transportation to his operation, and then under this act, as worded with

“personally,” “must personally transport those workers everyplace on

the farm.”

Mr. Maguire. If I may just interrupt—it is to exempt the family

farm. That is what the current law is attempting to do. But you are

trying to exempt anybody who hires people that you and I would

both agree are migrant farm laborers as long as the migrant farmworkers are going to be working within this operation, no matter how

big it is, no matter how far away it is, no matter how many migrant

farm laborers are there, for no matter what period of time.

If the change you are advocating were to be approved, everybody

in that category would be exempt from this law; and that is, in fact,

what you are asking for ?

Mr. E llsworth. Yes, sir.

Mr. Maguire. I do think there is a tremendous burden of proof, then,

that is placed upon you with respect to whether or not that is wise

legislating on our part. It certainlv seems to me that abuses are what

we ought to be focusing on rather than entities. If there are no abuses,

then obviously your people do not have to worry. If there are abuses,

then we had better have them covered, I would think.

Perhaps you say, “Well, the paperwork is burdensome.” But I think

that gets us into another line of inquiry as to whether it really is all

• that burdensome. You have to keep payroll records anyway; you have

to have insurance; you have to do a lot of different things regardless of

how this law works.

Mr. E llsworth. But my farm may be in a State that has manda-

* tory workers’ compensation insurance at the present tim e; yet, if one

of my employees is forced to register as a farm labor contractor by virtue of the interpretations of this act, I then have to carry this additional ICC insurance on all vehicles, regardless of size and so forth.

This, then, is an additional monetary burden which becomes pretty

great.

But, sir, my testimonv todav and my presentation today was to talk

about the oversight of the enforcement of the act by the Department

of Labor, not the amendments.

Mr. Magutre. But I do think the amendments are pretty important,

since we are faced with that question.

68-643 0 - 8 0 - 2
14

Mr. Ellsworth. I would welcome the chance to have hearings on

the amendments.

Mr. Maguire. I think I had better subside for the moment, Madam

Chairwoman.

Mrs. Collins. We will go back to Air. Butler and then return to me

and you.

Air. Butler.

Air. Butler. Thank you.

I hope the gentleman does not disappear. I think you have put your

point that there is a pretty basic kind of cleavage in the country. What

you are saying is that there may be some problems, so we regulate

everybody. What you are saying is that you do not need to regulate

this much because there are others doing the same job.

Basically, if we took your interpretation, would that leave the migrant worker who is employed directly by the farmer defenseless ?

Mr. Ellsworth. No, sir. I think there are numerous instances already, and we expect them to increase in the future, where the migrant

legal worker organizations and farmworker organizations are coming

into the picture. They are able to call the attention of the corporate

agencies to abusesto farmworkers.

Mr. Butler. I want to catalog the appropriate agencies.

Mr. Ellsworth. If it is housing, they could go to OSHA. If it is

underpayment of wages, they could go to the Fair Labor Standards

Act.

Mr. Butler. And for health conditions, they would seek local help?

Mr. Ellsworth. You can get them through that or through the State

or county.

Mr. Butler. Also, of course, the access to these services is being

improved with the Legal Services Corporation, and I think we are

going to hear some more about that later.

Let me now turn to this question. On page 12 of your testimony,

as we are addressing ourselves to the administration of the act, you say,

“On January 4, 1978, Charles Kelso, counsel for the Florida Fruit &

Vegetable Association, wrote to the U.S. Department of Labor posing

questions regarding FLCRA compliance. To date (nearly 2 years

later), Mr. Kelso has not received a reply to his questions. How can

anyone give guidance to clients or members under such conditions?”

And you attach to your statement a copy of Mr. Kelso’s letter of

January 4, 1978.

There are a number of questions here. I now ask you, have you yet

received a response to these questions ?

Mr. Ellsworth. I called Mr. Kelso and talked with his secretary

yesterday, and she said that no response had been received.

Mr. Butler. Madam Chairwoman, we have the Department here

today.

Mrs. Collins. Yes. And that is a question we will certainly want to

ask them today.

Mr. Butler. Would it be fair to warn them now that we are going

to ask them what the responses to these questions are and why they

have not responded ?

Mrs. Collins. Yes, sir.

Air. Butler. OK. That is what I am going to do, and I think I will

save my time for that.
15

Mrs. Collins. All right.

I have just a couple of questions, Mr. Ellsworth.

First, how many migrant worker camps does your association estimate there are now?

Mr. Ellsworth. I have no idea. Maybe one of these gentlemen does.

Mr. Shaw.I have no idea how many there are.

Mr. Myers.I have no idea.

Mrs. Collins. I find it strange that you do not have any idea how

many worker camps there are. Would it be possible for you to get that

information for us through your regular operations?

Mr. Ellsworth. Madam Chairwoman, my membership is not all

inclusive of all employers that operate labor camps. Therefore, I have

a problem getting beyond that. We could make an effort to try to get

that information; I cannot promise it would be forthcoming early.

Mrs. Collins. How many camps are there within the members of

your association ?Perhaps you could answer that.

Mr. Ellsworth.I do not know.

Mrs. Collins. That would not be too difficult for you to get, would

it?

Mr. Ellsworttt.If all my members were to respond, I could get that.

Mrs. Collins.Could you possibly aret that for us ?

Mr. Ellsworth.I can give it the old college try.

Mrs. Collins. All right. Thank vou.

Also, I would like to know, of that same group, roughly how many

crew leaders there are and how manv migrantsthey use.

Mr. Ellsworth.Will you define the term, “migrant,” as you mean it, 

please ?

Mrs. Collins.I think vou know what migrants are. I think we all do.

Mr. Ellsworth. All right.

Mrs. Collins. Without objection, that information will appear in

the record at this noint.

[The material follows:]
16

NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS

237 SOUTHERN BUILDING • 15th and H STREETS, N.W.

WASHINGTON, D. C. 20005 (202) 628-8650

January 16, 1980

Mrs. Cardiss Collins, Chairwoman

Subcommittee on Manpower and Housing

Committee on Government Operations

B-349A Rayburn House Office Building

Washington, D. C. 20515

On November 13, 1979, Mrs. Collins,

your Subcommittee held hearings regarding the enforcement of farm

labor laws by the U. S. Department of Labor. During that hearing you

asked that NCAE attempt to obtain answers to the following questions:

1. How many migrant labor camps are operated by NCAE member

employers in 1979?

2. How many crew leaders are hired by NCAE members in 1979?

3. How many migrant workers are hired by NCAE members in 1979?

We sent out a survey form on November 14, 1979, to obtain the requested

information. Not being experts in conducting surveys or analyzing data, 

the answers are based on the following:

Responses received: 230

Number of migrant labor camps operated: 589

Number of crew leaders hired: 577

Number of migrant workers hired: 17,504

In reading these statistics, one must keep in mind that the numbers are

reflective of duplications. For instance, a crew leader may have worked

for six different employers (south to north) during the year. If all

six employers responded to our survey, that one crew leader would be

counted six times. The same would apply to migrant workers.

Perhaps a better estimate of the approximate number of crew leaders

would be the testimony given by the U. S. Department of Labor in 1974

during hearings which led to amendment of the Faim Labor Contractor

Registration Act. At that time the USDL witness stated that there were
17

an estimated 6,000 crew leaders in this country.

In an attempt to get national data regarding the number of migrant

labor camps, we learned that the USDL Bnployment and Training Administration’s U.S. Qnployment Service had gathered data which was forwarded to OSHA several years ago and is apparently lost.

There is no way we can "factor" the results we obtained to give either

NCAE member-wide or national statistics to answer your questions.

Perhaps, one of these days, NCAE will develop a statistical capability

and get such information, but it does not now exist.

Sincerely,

Perry R. Ellsworth

Executive Vice President

PREsta

'w
18

Mrs. Collins. Aly final question is this: It is my understanding that

the law, as it stands now, requires written disclosure of the contract, if

you want to call it that. Is that right?

Mr. E llsworth. Conditions of employment—yes.

Airs. Collins. OK.

On characteristic of this industry, as I understand it, is that the

recruitment of workers is away from a site. Is that right ?

Air. Ellsworth. I would say th at in the majority of cases that is

true. It may be that the crew’ leader will call an employer, and the

employer will talk to the crew leader long distance.

Airs. Collins. But usually it is away from the site?

Mr. Ellsworth. Yes.

Airs. Collins. Aly question, then, is: How would the migrant be protected against all misrepresentations of wages and working conditions by a corporate recruiter if it were not for the written statement ?

It would be impossible. AVould he not be forced to try to prove an oral

contract sometime later, if that were the case?

Mr. E llsworth. As I said earlier, Madam Chairwoman, we have no

objection to written job conditions.

Mrs. Collins. All right.

Air. E llsworth. There is nothing like a piece of paper to prove your

point.

Airs. Collins. If the law were changed as you would like to see it

changed, would there still be a required written disclosure?

Air. E llsworth. Not under the act as presently written—no—but T

think that could be something we could work out.

Airs. Collins. Thank you.

I have no further questions at this time.

Did you have something you wanted to add, Air. Shaw ?

Air. S haw. If I may, Aladam Chairwoman. I just want to put in

focus our primary thrust.

If we assume just for the moment that 99 percent of the abuses are

caused by crew leaders, which is the assumption th at I think the hearings went on in 1964 and 1974, and 1 percent by corporate, if that is correct, then with the limited manpower available, we can do far, far

more for the worker by concentrating the enforcement in the direction

of the thrust of the act, at the crew leaders who are responsible for

99 percent of the abuses, instead of wasting a lot of time on the 1 percent that could conceivably occur elsewhere. In the whole mainstream

of America, this is the only act that I know of that requires employers

or users to register as a precondition to employment of workers.

If it is needed here, why is it not needed anywhere else? Obviously,

the answer is because the abuses have not been bad enough to justifv it.

If that delineation is going to be made based on where the principal

abuses occur and are likely to occur, it should be made within as well

as without the act.

We urge this committee to seriously consider a rethrusting of the act

to direct the focus of it primarily at where the greater potential for

abuse lies and away from those areas where they do not lie by creating

incentives, Airs. Collins, to cause employers and users to bring the

workers into the mainstream rather than go through the crew leader

route.
19

Mrs. Collins. Let me say this. This subcommittee is interested in

getting at the problem and hopefully offering some suggestions on how

the problem can be eased. We are not out to cause hardship to any of

the people who are parties to a migrant contract, the migrant workers, or anyone else. We want to determine through our hearings the

best possible solutions to eliminate some of these abuses from whatever

the sources of those recommendations are going to be.

We hope, and we plan, to be fair and evenhanded. I am not sure

that this is going to be the only hearing we have on the subject. As a

matter of fact, I suspect this is going to be the beginning of a number

of hearings. But be assured that this subcommittee will deal with the

matter as it seesit.

Thank you very much.

We are running very short of time, and we do need to get to our

other witnesses, if you please.

Mr. Ellsworth. Fair enough.

Mrs. Collins.Thank you.

[Mr. Ellsworth’s prepared statement follows:]
STATEMENT

of

PERRY R. ELLSWORTH, EXECUTIVE VICE PRESIDENT

NATIONAL COUNCIL OP AGRICULTURAL EMPLOYERS

Washington, D.C.

fo r the

SUBCOMMITTEE ON MANPOWER AND HOUSING

HOUSE COM4ITTEE ON GOVERNMENT OPERATIONS

November 13, 1979

I welcome th e opportunity to appear a t th is o versight hearing to discuss the

enforcement of cert.-'in farm labor laws and reg u la tio n s by th e U.S. Department

of Labor,

I understand th a t the two m atters of concern to th is Subcommittee today are

enforcement o f the Farm Labor Contractor R e g istra tio n Act (FLORA) and regulatio n s governing housing fo r migrant a g ric u ltu ra l workers.

FARM LABOR CONTRACTOR REGISTRATION ACT

The Farm Labor Contractor R eg istra tio n Act came in to existence in 1963* At

th a t tim e, i t covered persons who tran sp o rted ten o r more a g ric u ltu ra l workers

from one sta te to another. In 1974 the Act was amended (P.L. 93-518) to in ­

clude w ithin the d e fin itio n of farm labor co n tra cto r "any person, who fo r a fee

e ith e r fo r himself o r on b eh alf of another person, r e c r u its, s o li c its, h ir e s,

fu rn ish e s, o r tran sp o rts migrant workers (excluding members o f h is immediate

family) fo r a g ric u ltu ra l employment."

The amended Act sp e c ifie s th a t the term "farm lab o r co ntractor" sh a ll not in ­

clude, (among o th e rs):
21

-2-

1. any nonprofit charitable organization, public or nonprofit private •

educational institution, or similar organization.

2. any fanner, processor*, canner, ginner, packing shed operator, or

nurseryman who personally engages in any such activity for the purpose 

of supplying migrant workers solely for his own operation;

3. any full-time or regular employee of any entity referred to in (1)

or (2) above who engages in such activity solely for his employer on 

no more than an incidental basis;

r 4. any person who engages in any such activity (A) solely within a .

twenty-five mile intrastate radius of his permanent place of residence 

and (B) for not more than thirteen weeks per year;

MIGRANT WORKER

First,perhaps, we ought to attempt to define the term "migrant worker."

The Farm Labor Contractor Registration Act defines "migrant worker" as

follows:

The term "migrant worker" means an individual whose primary employment is in agriculture, as defined in section 3 ( f ) of the Fair

Labor Standards Act of 1938 (29 U.S.C. 203(f)), or who performs 

agricultural labor, as defined in section 3121(g) of the Internal 

Revenue Code of 1954 (26 U.S.C. 3121(g)), on a seasonal or other

temporary basis.

The Field Operations Handbook of the Wage and Hour Division of the U.S.

*■ Department of Labor interprets the FLORA definition as follows:

"The term ’migrant worker’ as defined by Sec 3(g) of the Act includes

any individual whose primary employment is in agriculture, as defined

in Sec 3(f) of the FLSA or who performs agricultural labor, as defined
22

in Sec 3121(g) of the Internal Revenue Code, on a seasonal or other

temporary basis. In other words, any employee who is performing

agricultural work is a migrant worker for purposes of the FLORA.

There is no distinction between the worker who moves about the country

within the stream of production and the worker, who remains at his

home and works in his own area year round."

The U.S. Department of Agriculture defines a "migrant worker" as follows:

"Migrant workers include all persons who left their homes temporarily

overnight to do farmwork in a different county within the same state or

in a different State with the expection of eventually returning home."

Apparently, the definition of "migrant worker" depends on the person or organization defining the term. On the one hand, the FLORA definition includes

persons such as students who, living in the country, work in agriculture during

summer vacation from school. The same definition classifies as a migrant

worker, the wives of U.S. Air Force personnel at Plattsburgh Air Force Base

who harvest apples while their children are in school on week days. If the

FLORA definition holds, then there were, according to the U.S. Department of

Agriculture 2, 730,000 "migrant" farm workers in 1977. Based on the same USDA

study, however, there were only 191, 000 true migrant agricultural workers in

the hired work force in 1977.

Generally,speaking, agricultural employers have thought of migrant workers as

being workers who leave home, travel to seek employment, remain away from home

one or more nights, but return at season’s end to their own homes. There are

exceptions - - workers who have no homes but these have been considered

migrants,
23

The Department of Agriculture, in its publication entitled "The Hired Working

Force of 1977" (Agricultural Economic Report No: 437) shows, in Table 1, that

of a 1977 hired farm work force of 2, 730»000. The majority (72%) were whites,

11% were Hispanics and 17% were Blacks and others.

1,056,000 or 39%,worked in agriculture less than 25 days

667,000 or 24%, worked in agriculture from 25 to 74 days

332,000 or 12%, worked in agriculture from 75 to 149 days

295»0OO or 11%, worked in agriculture from 150 to 249 days

391»000 or 14%, worked in agriculture . 250 or more days

Thus, 63% of the 1977 hired farm work force worked in agriculture less than 75

days during 1977» and 75% worked less than half a year.

These figures are shown here to give a perspective to the over-all agricultural

labor picture. It is probably safe to say that the 2,O55»OOO (75%) who worked

less than 150 days were engaged in seasonal work while the 686,000 who worked

150 or more days had ye r-round jobs but did not choose to keep those jobs.

Of the total 1977 farm work force, the USDA study shows that only 191,000 were

migrants. In a 1973 study by the U.S. Department of Agriculture entitled

"Social and Economic Characteristics of Spanish Origin Hired Famnworkers in

1973" (Agricultural Economic Report No. 349) the racial breakdown of migrant

farm workers was 63% Anglo, 33% Spanish-Origin and 4% Blacks and others.

In the section 3(g) definition of "migrant worker" in FLORA, there is a comma

toward the end of the definition and just before "on a seasonal or other temporary basis." Relying on English classes of by-gone years, that comma would

mean that the words following it modify the entire sentence. The U.S. Department of Labor has chosen, however, to have those words following the comma
define only *'or who performs agricultural labor, as defined in section 5121(g)

of the Internal Revenue Code of 195^ (26 U.S.C. 5121(g))". Thus, anyone "whose

primary employment is in agriculture> as defined in section 5(f) of the Pair

Labor Standards Act of 1957 (29 U.S.C. 205(f))" is considered a migrant worker

by the USDL. Thus, by the interpretation of the Act by the USDL, every farmer

and rancher in this country is a "migrant worker."

The above interpretation of section 5(g) of FLCRA has resulted in many agricultural employers suddenly realizing that even though they employ workers for

year-’round jobs, those workers are"migrant workers"and their employers may be

subject to FLCRA.

Senate Report No. 95-1295 contains the following language on page 2: "Basically

there are two types of farm laborers: the migrants who travel from state-tostate along fairly established patterns and those who live permanently in the

agricultural area where they work." (Underlining added.) It appears to NCAE

that the original Act and the 197^ amendments were written to protect seasonal

farm workers, not year-round agricultural workers employed at the same job or

by the same employer all year.

Agricultural employers feel very strongly that the U.S. Department of Labor

should interpret section 5(g) of FLCRA as it is written. Apparently, Congress,

the Department of Labor and even farm worker organizations accept the term

"migrant worker" to mean those who leave home and those who work on a seasonal

or other temporary basis in agriculture if one reads the statements spoken

and written on behalf of "unprotected, uneducated, migratory farm workers,"
25

There in one exception to the above definition of "migrant worker" --- the dayhaul worker. In some parts of the country crew leaders pick up, on a daily

basis, workers from an assembly point, transport them to agricultural jobs,

and then return them at the end of the day. The National Council of Agricultural Employers agrees with coverage, , under FLORA, of the crew leader engaged in a day-haul operation, who recruits and hires on a day-to-day basis,

workers who are paid at each day’s end and who return to their regular place of

abode each night. The opportunities for abuse of such workers by such crew

leaders are potentially present and protection is justified.

BERSONALLY

There has been much debate and several law suits over the meaning of the word

"personally" in section 3(b)(2) of FLCRA.

Roderick K. Shaw, Jr., an attorney with the Tampa, Florida law firm of Allen,

Dell, Frank & Trinkle explained in detail, in his written statement for hearings

before the Subcommittee on Economic Opportunity of the House Committee on Education and Labor on February 22, 1978 how the word "personally" remained in the

bill enacted by Congress in December 197^. (See footnote 1, page 111 of the

hearing record;) It is clear, from the legislative history described in that

footnote that:

1. The word "personally" in Section 3(b)(2) was used in the October 1,

197^ Senate Comnittee version to distinguish the direct hiring of

workers as employees of the farmer or processor from indirect hiring

through crew leaders.

2, The decision of a farmer or processor as to whether to incorporate has

no rational relationship to the potential abuses the Act is designed

to correct,
3. A farmer or processor does not, by incorporating, therby become the

kind of middleman contractor Congress intended to regulate.

An article entitled "Surprise! You May Be A Farm Labor Contractor" written by

James Leather, a staff attorney for the Vegetable Growers Association,

Glendale, Arizona appeared in The Agricultural Law Journal, Volume 1, Number 2.

In that article, Mr. Leathers wrote as follows:

"The growers’ position is that the legislative history of the Act makes

it clear that it was the intent of Congress to regulate the middleman,

i.e., the independent farm labor contractor, and to protect both growers

and farm workers from this middleman. Section 3(b) of the Act defines

a farm labor contractor as any person who for a fee engages in any of

the following activities: recruiting, soliciting, hiring, furnishing

or transporting. The intent of Congress was to regulate and control the

farm labor contractor, i.e., the crew leader or middleman who recruits,

hires, or transports individuals on behalf of another who either cannot

afford to provide these services or does not have the equipment himself.

Also, interpretive regulations of the Secretary of Labor concerning the

Act state that it was intended to regulate the practices of all persons

functioning in the capacity of middlemen between the farmer, grower, etc.,

and the migrant worker.

"The growers also contend that the legislative history of the wording of

85(b)(2) shows that the word "personally" within §3(b)(2) does not mean

that a corporate grower cannot claim the exemption. Prior to 197^, §5(b)

(2) provided an exemption for any farmer who engages in farm labor contracting for the purpose of supplying migrant workers for his own operation.

While the 197^ amendments to the Act added the term "personally," there
is nothing in the legislative history of those amendments which explains

or interprets that word. The word may, however, have been inadvertently

left in the Act if the legislative history of the original Senate bill is

indicative of congressional purixjse. Senate Committee Report No. 93-1206,

dated October 1, 197^» sets forth the Senate’s version of the proposed

amendment to this portion of the Act. The proposed amendment divided the

§3(b)(2) exemption into two subparts, subpart A covering the situation

in which a farmer or processor hired the workers personally, and subpart

B covering the situation in which a farmer or grower hired indirectly

through a farm labor contractor. The proposed amendment provided as

follows:

"The term farm labor contractor shall not include a farmer....(A) who

personally engages in any such activity for the purpose of supplying

migrant workers solely for hia own operation; or (B) who indirectly

engages in any such activity through an agent or by contract , -viiere

he first determines that the person so engaged possesses a certificate from the Secretary that is in full force and effect at the time

he contracts with such person so engaged.’

"The purpose of subpart B was to make the exemption dependent on whether

the grower had complied with the requirements of §4(c) of the Act which

forbids the use of a contractor’s services unless the contractor has complied with the registration requirements of the Act. Senate Committee

Report No. 93-1206, provides in part:

•The farmer is also exempt from coverage if he recruits workers

indirectly through a contractor provided that he meets the requirement of determining in advance that the contractor has complied

with the registration requirements of the Act.’
"The House of Representatives apparently considered subpart B to be inappropriate, or unnecssary, in light of §4(c), and adopted an amendment

designed to strike out the latter half of the Senate version. As the

Act now reads, only subpart A survived with the ward "personally" still

intact.. This may have been inadvertent since in -the Senate version the

word "personally" was used to distinguish the hiring of workers through

middlemen from the hiring of workers by the grower. Once subpart B was

dropped the word does not have much significance. This conculsion is 

further suggested by the fact that nowhere in the legislative history is

the meaning or intent of the word "personally" explained. It must also

be noted that the Act defines the word "person" to include a corporation,

thus a corporation must be able to act personally. The reason therefore

for the word "personally" in §3(b)(2) was either inadvertence on the part

of Congress or perhaps was meant to emphasize the fact that the grower

must engage in these activities solely for his own operation and not for

the operation of someone else."

As presently written, with "personally" appearing in section 3(b)(2), probably

the largest point of contention arises over whether a corporation can act "personally;" FLORA defines the term "person" to include, among others, a corporation (Section 3(a)). Under the law, as this writer understands it, an employer

be it an individual, partnership, association, joint stock company, trust or

corporation, is accountable for the actions of its employees. It seems totally

inconsistent to call a corporation a person and then say a corporation can not

act personally, and solely for its own operation.

Another point of contention is the U.S. Department of Labor enforcement procedure whereby its compliance officers maintain that an employer otherwise

exempt under 3(b)(2) must personally transport workers during their employment

or have the person who does transport workers, unless exempt under section
29

3(b)(3) or 3(b)(4) register as a farm labor contractor. This has brought about

when coupled with the USDL’s interpretation of 3(b)(3), the registration of persons who are no more farm labor contractorss than are the members of this Subcommittee.

The interpretation of the word "transports" contained in FLORA, by the U.S.

Department of Labor differs drastically from what NCAE believes was the intent

of Congress. All references to transporting migrant workers contained in

coninittee reports and elsewhere give the clear impression that the act of

transporting such workers means the transportation of workers from one job site

to another - - from their homes to a farm or from farm to farm in a vehicle or

vehicles owned or controlled by a farm labor contractor. It does not seem

possible that it was the intent of Congress to cause the operator of a farmowned vehicle, operated by farm employees, to register those farm vehicles and

their operators and insure those vehicles with coverage equal to that of

interstate conmon carriers for transporting workers from field to field totally

within the farm boundaries. If such had been the intent, there would have been

some discussion, at least, about those farmers with workmen's compensation under

state law or on a voluntary basis.

USDL compliance officers have cited countless persons and their employers for

violation of the transportation provision of FLCRA. Two examples will suffice

here.

1. The General Manager of a citrus cooperative in Texas was cited for

violating FL£RA’s transportation provisions because one day he took

one of thirty-nine registered crew leaders working for that cooperative

in the Manager’s private vehicle, half a mile down the road to show

the crew leader where he should work his crew the next day. He was

cited for not having registered as a "farm labor contractor," for

68-6U 3 0 - 8 0 3
30

unauthorized transporting and for not having the PLCRA—required insur

ance on his personal car.

2. In the sugar cane growing area of Florida, the land is very flat. It

is necessary to have rather large and deep drainage ditches, and it is 

necessary to keep those ditches clear. Many growers use a sarnll dragline shovel. In one situation the operator of the shovel rides back

and forth daily in a pick-up truck or car driven by a second person.

The second person generally remains at the location where the shovel

is operating to serve as oiler, wiper, refueler and safety man. That

second man was cited by the USDL for failure to register as a fana

labor contractor under FLORA because he was •’transporting" the shovel

operator - - a "migrant worker" by definition .

NCAE understands that neither of the above situations resulted in money penalties, but considerable time had to be expended by employers to resolve a matter

that, under proper interpretation of the Act and compliance procedures would

never have occurred.

The complexities of conforming to FLORA as interpreted by the USDL are almost

astronomical. The Act was signed into law on December 7, 1971*. The USDL has

not yet published its revised 29 GFR Part 41 Interpretive Regul. tions. During

the nearly 5 years since the law was enacted, the only guidance has been

through citations and opinion letters, and the latter are written only when one

writes to the USDL and asks for guidance regarding a specific situation.

On January 4, 1978, Charles Kelso, counsel for the Florida Fruit and Vegetable

Association, wrote to the USDL posing questions regarding FLORA compliance. To

date, (nearly two years later) Mr. Kelso has not received a reply to his

questions. How can anyone give guidance to clients or members under such conditions. Attached to this statement is a photocopy of Mr. Kelso's letter con-
31

taining 21 questions, the answers to which have not been forthcoming for Mr.

Kelso.

NCAE appreciates that PLCRA is a complicated law. As interpreted by the USDL,

is even more complicated. NCAE suggests that the purpose for which the law

was enacted in 1963 and amended in 197^ would be much better served if the USDL

devoted its limited resources to obtaining compliance in those areas where

violations having an adverse impact on migrant workers occur and ceased its 

attempts to force every possible potential "farm labor contractor" (as interpreted by USDL) to register.

Agricultural employers have testified at hearings conducted during the 9^th and

95th Congress regarding the difficulties involved in the Department’s interpretation of "personally." Employers are convinced that the inclusion of

"personally" was inadvertent.. We strongly urge that the word be deleted so that

employers can go about their business and so that the Department of Labor can

go about the serious business of enforcing the Act as Congress intended it to

enforced.

INCIDENTAL BASIS

Section 3(b)(3) of PLCRA states that the term "farm labor contractor" shall

not include -

"any full-time or regular employee of any entity referred to in (1) or (2)

above who engages in such activity solely for his employer on no more than

an incidental basis." ("Such activity" means the recuiting, soliciting,

hiring, furnishing or transporting of migrant workers for agricultural

employment,)

The U.S. Department of Labor has, by its various interpretations and compliance

activities, virtually changed the word "incidental" to "accidental." This,
32

it seems to agricultural employers, is totally inconsistent with the intent of

Congress. Three examples will suffice

1. Senate Report No. 93-1295 (93rd Congress, 2nd Session) has this to 

to say about secti on 5(b)(3)s

"While employment relationships vary, it is the Committee’s intent

that foremen and other bona fide employees will not have to register

as Farm Labor Contractors if it can be shown, for example, that they

♦

are full-time and permanent employees of an employer who utilizes a

limited portion of their time for activities as defined in section

5(b) of the Act." »

2. During a debate on the floor of the Senate on October 16, 197^» the

following dialogue occurred:

"MR. NELSON. Mr. President, the purpose of this provision is to prevent farm labor contractors from avoiding registration by becoming the

employee of each and every grower for whom they recruit and hire migrant workers, while at the same time providing an exemption under the 

act for the regular employee of a grower whose duties may include recruiting and hiring solely for his employer. The intent is stated on

page 7 of the Senate report (S. Rept. No. 93-1206) on H.R. 155^2 reads

as follows:

In addition, there is a new exemption for his full-time or

regular employees if their recruitment activity constitutes

only an incidental duty of employment and is performed solely

for him.

"So I think that the committee report and this colloquy make it clear.

"MR. CHILES. To qualify that a little, the fact that he, being a permanent employee, has this aotivity as one of his responsibilities would not
33

cause him to have to register, so long as he some basis of showing

that he was a permanent employee, had been, and had other duties.

Even though this duty might be considered to be an important aspect of

his job responsibility by his employer, the employer might say, ’It

is your Job to do this a portion of the year,1 if he were a permanent

employee and continued to have other duties, he would not be considered to have to register.

"Mr. NELSON, The Senator is absolutely correct in the manner in

which he has stated it,"

3. On July 21, 1975» Congressman William D. Ford, then the Chairman of

the Subcommittee on Agricultural Labor of the Hou e Conmittee on

Education and Labor wrote the then Secretary of Labor John T, Dunlop

in part as follows:

"However, it has recently come to my attention that the Department

may be administering this law in a manner which is contrary to

Congressional intent. I have been informed that compliance officers

from the San Francisco Regional Office have on more than one occasion

informed full-time employee (such as foremen) of farmers in and around San Joaquin County that they must register under the provisions

of the Act. It is my understanding that, although these employees

are engaged in transporting migrant workers from a meeting place in

town to their employer’s farm, they do so only incidetally in conjunction with many other duties which their job requires. According

to ray interpretation of the Act, this was not the way Congress intended it to be administered.

"As you know, section 3(b) of the Act, which defines Farm Labor Contractor, specifically excludes ’any farmer...who personally engages

in cnch activities for the purpose of supplying migrant workers
for hia own operation.’’

’’Section 5(b)(3) excludes "any full-tine or regular employees. . .

who engages in such activity solely for his employer on no more than

an incidental basis."

"In your interpretation of this section I would like to call your

attention to identical language which appears in both the House

Report (H.R. Rep. N o . 1.93-12193» P. 7) and the Senate Report (S. Rep.

No. 95-1295, p. 7-8). This language provides:

In addition, the exemption in section 3(b)(3) of the Act

has been revised to apply to any full-time or regular anployees

of any aitity referred to in section 3(b)(1) or (2) if their

covered activity is performed on no more than an incidental

basis and is performed solely for such entity. While employment

relationships vary, it is the Committee’s intent that foremen

and similar bona fide employee will not have to register as

Farm Labor Contractor if it can be shown, for example that they

are full-time and permanent employees of an employer, who utilizes a limited portion of their time for activities as defined

in section 3(b) of the Act (emphasis added).

"It would seem to me that the above cited language leaves little

doubt that the Congress did not intend the Act to be construed in a

manner that would require a foreman (or other employee) who is a regular full-time employee of a farmer, and who, as part of his many

duties, drives from the farm into town and picks up and transports

workers to his employer’s farm (and returns them to town at the end
35

I of the day) "to register under the provisions of this Act. However,

I in light of the reports I have received, I vruld like to be apprised

I of your current policy with respect to this exemption.

I "I would also like to direct your attention to two further questions

I which have recently been brought to ray attention - the interpretation

I of the tern "for a fee" which appears in section 3(b), and the

* interpretation of the word "personally" in section 3(b)(2). t

I "In light of the 3(h)(3) exemption which excludes "any full-time or

| „ regular employee", I would assume that the words "for a fee" would not

I be construed to include any part of the salary of a full-time or re—

I gular employee who, as part of his job, is required to transport

I workers between a meeting place in the city and his employer’s farm.

I I would like to have your policy with respect to this language

I clarified, since it has been brought to ray attention that some conI fusion may exist in certain areas of the country."

I In spite of Congressman Ford’s letter to Labor Secretary Dunlop, Warren D.

I Landis, Deputy Administrator, Wage and Hour Division, USDL signed an August

I 26, 1977 Opinion Letter (WH - 431) which states, in parts

I "A fieldman employed by a shed such as described above who transports

I farm labor contractors to inspect a grove or field in connection with

I the day-to-day work assignments must either be registered as a farm

I labor contractor with transportation authorized or be a holder of a

£ r valid farm labor contractor employee ID card wroking for a registered

I faro labor contractor who has transportation authorized. The truck

I or vehicle used to transport the faro labor contractor must be idenI tified on the f"rm labor contractor registration card. The truck
36

must be inspected and have adequate seating facilities for each person

being transported. Thus if the contractor is the only one transported,

appropriate seating would be required for the f a m labor contractor and

the driver. (See item 1? of f o m WH-4l4) Each full-time or regular

employee who engages in f a m labor contracting activities for a shed

which is subject to the registration requirements of the Act must

register either as a f a m labor contractor or be the holder of a valid

♦

f a m labor contractor employee ^identification card."

Purthemore, the Secretary of Labor has, by interpretation, succeeded in *

emasculating the 3(b)(3) exemption. He has interpreted "full-time employee"

to mean an employee who is hired for continuing year-round employment and who

works a full schedule of hours for his employer. He has interpreted "regular

employee" to mean an employee whose employment is contemplated on a year-round

basis but who will work less than full-time for an employer. This all boils

down to the fact that nearly all the growers and processors in this country

will not, by definition, qualify for the 3(h)(3) exemption. NCAE finds it

very difficult, if not impossible, to believe that Congress did not realize

that agricultural production and food processing are seasonal. Oranges do not

grow year-round in Florida. Artichoke packing sheds do not operate year-round

in California. Food processors in Wisconsin and other states can not operate

when there are no agricultural products to process.

Absent interpretation and enforcement of section 3(b)(3) based on the realities

of agriculture, that section should also be amended so that it truly sets

*

forth the intent of Congress.
37

enforcement

During hearings leading to the 1974 amendment of FLORA, the U.S. Department of

Labor estimated that there were 6,000 crew leaders active in this country and

that the 1963 Act had produced registration of only 2,000. Through May 20,

1979, the FLORA Public Registry showed a total of 12,834 farm labor contractors

and fann labor contractor employees registered under the Act. Quite obviously,

USDL has exceeded its fondest expectations. In that total, NCAE is convinced

are hundreds of persons forced to register by virtue of the exceedingly broad

interpretation of the Act’s coverage and exceedingly narrow interpretation of

its exemptions.

An analysis of the citations issued against all f a m labor contractors is quite

revealing. From FY 1977 through the first half of FY 1979, of a total of

5,061 citations, only:

14 were for misrepresentation to workers

138 were for knowingly hiring illegal workers

22 were for improper money payments

9 were for improper charges for workers* purchases

63 were for housing and health standard violations

11 were for failure to abide by agreement with workers

3 were for discrimination against work, rs exeeising their rights

Those substantive violation citations where there were alleged abuses f

"migrant workers" total 260 or just 5*2% of the total citations issued.

Labor could better concentrate its resources on curbing abuses by unscrupulous

crew leaders as Congress intended instead of expending their manpower to force

corporate personnel directors, school bus drivers transporting local youths to 

detassel co m , general managers driving crew leaders to various groves, foremen
38

or other employees driving one or more workers from field to field on the

same farm, owners and foremen of feed lots which employ only year ’round labor,

supervisory personnel of food processing plants, and other such persons to 

register as farm labor contractors.

Apparently, 52 United States Senators agree with this view.
39

FARM LABOR HOUSING

There are two types of farm labor housing; That furnished voluntarily to

migrant farm workers and th a t furnished in compliance with mandatory housing

requirements of certain Federal regulations.

Both types of housing are subject to inspection by sta te and loc a l health

au th o ritie s. Both types are subject to inspection by the Occupational

Safety and Health Administration with two exceptions. A gricultural employers

who u tiliz e the U. S. Employment Service must have housing th a t meets the

Service’s standard. Agricultural employers who request c e rtific a tio n for

the employment of temporary foreign workers must have housing tha t meets

the U. S. Employment Service standard.

STATE AND LOCAL INSPECTION

Thirty one (31) sta te s and the Commonwealth of Puerto Rico have laws governing

agricu ltu ra l labor housing. While there is a variation between sta te s, many

have laws which very closely resemble the U. S. Employment Service regulation

or the housing requirements of OSHA.

OSHA

Under the Occupational Safety and Health Act, the Occupational Safety and

Health Administration, USDL, adopted, as a consensus standard, a voluntary

temporary labor housing standard promulgated by the American National

Standards In stitu te . The OSHA standard is contained in 29 CFR Part 1910.142.
40

OSHA'3 authority to inspect agricultural labor housing is derived, by OSHA

from its responsibility for health and safety in the workplace. Many employers have argued tha t housing is not part of the workplace ---- th a t the

workplace is the fie ld , grove, orchard, ranch, packing shed or processing

plant, not the place where workers liv e while off duty. This view has met

with stiff resistance from OSHA, but in two recent decisions, a USDL Admin

istra tiv e Law Judge ruled th a t OSHA has no ju risd ic tio n and held that

housing furnished by an employer for the benefit of employees and in which

employees perform no labor is not a "workplace." In the cases in question

the judge concluded th a t housing was not a condition of employment because

workers were not compelled by economic r e a litie s or geographical location

to live in the housing. OSHA has, needless to say, appealed the judge's

decision to the Review Commission.

There is a a degree of inconsistency when courts, the USDL, farm worker

organizations and other groups demand acces3 to workers in employer-supplied housing because such housing is held to be the workers' home and

workers should be free to invite in whomever they wish, and the USDL's

view th a t such housing is a part of the workplace and the employer's

re sp on sib ility .

Previous Congresses have, through Labor-HEW appropriations b ills, prohibited OSHA from ju risd ic tio n over any ag ricu ltu ra l workplace where an

employer employed ten or few r workers at.any one time during the year.

The 96th Congress limited the prohibition to any workplace which employs

ten or fewer workers a t any time during the year and which does not have a

labor camp. It is important to note, however, th a t OSHA can inspect agricu ltura l housing only when i t is occupied.
41

U. S. EMPLOYMENT SERVICE

The U. S. Employment Service (USES) has promulgated its housing standard,

20 CFR Part 620. A gricultural labor housing of employers u tiliz in g the USES

must pass inspection p rior to occupancy by workers.

DISCUSSION

One can readily surmise the first complaint of ag ricultura l employers. Just

before and during the busiest period of the year, an ag ricultura l employer

is beset with housing compliance o ffic e rs. It is not unusual to have a d ifferent inspector four days running (USES,C0U n

ty , sta te , then OSHA for instance)

Another problem has been th a t the USES and the OSHA standards vary to a small

degree. Housing might pass USES inspection, then OSHA would show up and raise

cain. About two years ago the USES published a rule which gave agricultural

employers notice th a t the USES standard had been cancelled and th a t within

12 months a ll housing would have to meet the OSHA standard. There was a great

outcry of objection. In many instances remodeling good USES-standard housing

of concrete block construction to meet the OSHA standard would have cost more

than the cost of the orig inal construction. A compromise was reached. Any

new housing b u ilt or any major remodeling of USES-standard housing a fte r

January 1, 1979 would have to meet the OSHA standard. NCAE concurred with

th a t compromise.

The subject of ag ricultura l labor housing is an explosive one. NCAE w ill not

deny tha t there is s t i l l some undesireable housing in th is country. In its

newsletters, NCAE has urged its members to build good housing to meet or
42

exceed the OSHA standard. NCAE does not have st a tistic s to prove i t , but

i t is safe to say th a t agricultural labor housing has come a long way in the

past ten to fifte e n years. Employers are building concrete block housing

and they are using modern house tr a ile rs to house those on whom they depend

for the harvest of th e ir crops and other work.

There are those who would mandate th a t housing exceed the OSHA standard.

There are severe economic considerations involved, however. How much money

can an employer afford to spend per year for housing which w ill be occupied

fo r ju st a few weeks? *

There are those who would demand th a t each employer provide family housing.

Many do, but in the la rge r sense, i t is almost an im possibility, for there

is absolutely no way th a t an employer can build and maintain housing for

families when he has no idea how many families may arrive and how large

those families may be.

ENFORCEMENT

The Department of Labor must adopt a re a listic approach to enforcement of

housing standards. NCAE suggests the following:

1. Continue and expand the present program whereby an OSHA inspector w ill

ascertain, before conducting an inspection, whether the housing was

b u ilt to meet the USES or the OSHA standard and then inspect i t

accordingly. *
43

2. Work out an arrangement with sta te and local au thoritie s whereby one

inspector w ill perform an inspection for a ll levels of government.

This would conserve manpower and save employers valuable time when

they are in th e ir busiest season.

3. Give an employer a chance. The sta te inspector in one large state

inspected labor housing a t a large orchard ju st before the workers

arrived and gave i t a clean b il l of health. The morning a fte r the

workers arrived an OSHA inspector arrived and found screening loose

in a door. Apparently a worker had indavertently pushed on the

screening instead of the frame when opening the door. This partic u la r orchard had assigned one man f u ll time to make daily rounds

of the housing, to fix what he could and report other damage to the

manager. The damaged screen had been reported to the carpenter

but he had not had time to fix i t before the OSHA inspector arrived.

A c ita tio n was issued. Why not use a l i t t l e reason? Why not check 

back la te r and see if the door had been fixed as promised?

4. Keep in mind th a t even guests in high-priced hotels do damage to th e ir

rooms. Instance a fte r instance has been reported to NCAE of rather

wholesale damage to labor housing which could not be repaired in stan tly .

5. Make prior-to-occupancy inspections a t r e a listic times before workers

a rriv e . Requiring an employer to set up his housing 100% several

months before i t is to be occupied so i t can be inspected is to ta lly

unreal i at.i c . The employer, to avoid vandalism and loss w ill, a fte r

the inspector has l e ft, have to go through the exercise of removing
lig h t bulbs, matresses, beds and bedding. Then he w ill have to put

everything back ju st before workers a rrive .

By working together, government a t a ll lev e ls, and p a rticu la rly the Depart

ment of Labor and employers can continue the upward curve of present improvements in labor housing.
45

J a n u a ry 4 , 1973

Mr. Xavier M. Vela, Administrator

United States Department of Labor

Employment Standards Administration

Wage and Hour Division

14th & Constitution Avenue, H. W.

Washington, D. C, 20210

A

Re: Farm Labor Contractor Registration Act

Dear Mr. Vela:

* We, as representatives of virtually all the Florida

Sugar Cane Industry and of much of the Florida Fruit & Vegetable Industry, appreciate the meeting we had in Whshington on 

December 21, 1977, with Messrs. Landis, Cohen, Sugarman and

Van Xanen of the Wage-Hour Division, and Messrs. Myerson,

Padilla and Ms. Duryee of the Solicitor’s Office. We had

a' frank discussion of the problems faced by our farmer clients

in interpreting and complying with the Farm Labor Contractor

Registration Act ("FLCRA"). We were somewhat disturbed when

these top officials charged with enforcement of the Act could

not give us clear-cut answers to the following questions which

their field investigators are now asserting and which carry

three-year jail penalties. We need specific answers to the

following questions and will appreciate your written response. 

These questions arise from actual facts existing at" various

of our farmer clients' operations.

'1. (a) Is the term "migrant worker" used in FLCRA as

the persons to be protected limited in any way by where the

worker has "migrated" or traveled from? (b) Does FLCRA as

amended in 1974 apply to all persons performing the named

year-round services for "all agricultural employees" as defined

in the Fair Labor Standards Act, 29 U.S.C. 5 203(f), even though

all persons involved are employees of a farmer, live year-round

on the farmer's farm, and work solely for that farmer?

2. (a) Is the term "migrant worker" as used in FLCRA

to describe the persons to bo protected bv the Act limited to

seasonal or temporary workers? (b) Does the phrase "on a

» seasonal or other temporary basis" in 7 U S.C. § 2042(g) modify

and limit the definition of agricultural employees in 29 U.S.C.

§ 203(f), or do vou interpret said phrase to limit only the

definition in 26U.S.C. § 3121(g)?

58-643 0 - 8 0 - 4
46

Mr. Xavier M. Vela, Administrator

United States Department of Labor

Employment Standards Administration

Wage and Hour Division

January 4, 1978

3. As a result of your answers to questions 1 and 2

above, do you conclude that FLCRA requires registration for

all farmers’ employees who regularly perform the specified

activities with respect to all American farm workers?

4. (a) Does the exemption in 7 U.S.C. 5 204?(b),(5),

apply to persons who engage in covered activities solely with

respect to West Indian sugar cane cutters who cone into this

country under the "H-2 Program" and are employed pursuant to

Department of Labor certification and regulations at 20 C.F.R. 5 602.19, et seq., and pursuant to a contract with the British

West Indiea Central Labour Organisation, a government organization of the several Island governments participating in this

program? (b) If the exemption in § 2042(b)(5)(B) does not apply

to persons performing covered activities with respect to such H-2 workers, what does that exemption apply to?

5. A bus driver employed by a farmer devote;; two hours

each day driving a busload of BWI cane cutters, referred to in

question 4 above, who are employed by the same farmer,-to and from

the field.' During the remainder of his work day this bus driver

is employed by the farmer,to drive a tractor engaged in the harvest

operations on the farmer's farm or perform some other activity not

connected to farm labor contractor activities. The bus driver does

not transport any workers except H-2 workers. Must the bus driver

register as a farm labor contractor?

6. {a) A farmer has five tractor drivers who ape employed

by him full-time year-round. The farmer owns a truck which is used

by these tractor drivers to travel to and from home each day. One

of the drivers drives the truck every day devoting about one hour

to such driving duties while transporting the other four tractor

drivers. Must this driver register as a farm labor contractor?

(b) If the five tractor drivers alternate the driving duties, must

all five register as farm labor contractors? (c) Must the truck

be registered and insured under FLCRA?

7. (a) A crew of workers is sent to the fields to pick

up a load of tomato stakes to take them to another field ten 

miles away. All three workers ride in the truck on a public highway transporting the stakes between the fields. All three
- Page Thrjee

Mr. X a v ie r M. V e la , A d m in istr a to r '

U n ite d S t a t e s D ep artm en t o f L abor . : J

Employment S ta n d a rd s A d m in istr a tio n • . . jWage and Hour D iv isio n ••

J a n u a r y 4 , 1978 ;

..

■then r e t u r n t o th e y a rd to g e t t h e i r n e x t a ssig n m e n t w hich i s

t o p i c k up a lo a d o f c r a t e d v e g e t a b l e s a t a f i e l d and t a k e i t

to a p a c k in g sh e d . A g a in , a l l th r e e w o rk e rs r i d e on th e tr u c k ,

lo a d and u n lo a d i t . Such d u ti e s a r e a r e g u l a r and c o n tin u a l

p a r t o f t h e i r employment by th e f a rm e r; th e y p e rfo rm su c h d u t i e s

s o l e l y i n c o n n e c tio n w ith t h e i r em p lo y e r’s fa rm in g o p e r a tio n s.

M ust th e d r i v e r o f th e tr u c k r e g is t e r h im s e lf and th e tr u c k a s

a fa rm l a b o r c o n tr a c to r ? (b) I f a l l t h r e e em p lo y e es a l t e r n a t e

th e d ri v in g d u ti e s so t h a t e a ch one i n f a c t d r i v e rs , tr a n s p o r ti n g

t h e o t h e r tw o , on a " .r e g u la r a n d 'r e c u r r i n g 'b a s is ‘a s a p a r t o f h is

-em ploym ent by th e f a rm e r, m ust a l l th r e e r e g is t e r a s fa rm l a b o r

-■ c o n tra c to rs ?

8 . Two mess h a l l w o rk e rs em ployed by a fa rm e r d u rin g

t h e fiv e -m o n th h a r v e st p e rio d e a c h y e a r p r e p a r e th e p i c k e rs ’

•-noon meal and lo a d i t c n to a tr u c k . B o th w o rk e rs g e t on th e

-tru c k and d riv e fi v e m ile s on th e p u b li c r o a d t o th e f i e l d w h e re

.a crew o f h a r v e st e rs is w o rk in g . A ft e r d e li v e ri n g th e fo o d t o

-th e w o rk e rs th e y r e tu r n to th e l a b o r camp t o c om p le te t h e i r

-work day a s c o o k s, u t i l i t y w o rk e rs, j a n i t o r s , e t c . , em ployed

b y t h e f a rm e r i n th e l a b o r camp. The ab ove d ri v in g d u ti e s

i n v o l v e a b o u t one h o u r's work e a c h d a y . M ust th e p e rs o n s d o in g ,

-t h is d ri v in g r e g is t e r and m ust th e tr u c k b e r e g ist e r e d ?

9 . A d ri v e r o f a t r a c t o r who is an em ployee o f a

f a rm e r p u l ls a h a r v e stin g machi.ne on w h ich o t h e r w o rk e rs who

•are em ployed by t h a t fa rm e r ri d e w h ile h a r v e sti n g th e f a rm e r’s

■crops. T h is d riv in g and ri d i n g o c c u rs t o t a l l y w ith in th e f a rm e r’s

f i e l d . Must th e d ri v e r o f t h is tr a c t o r r e g is t e r a s a fa rm l a b o r

c o n tr a c t o r ? .

1 0 . A f i e l d forem an em ployed by a f a rm e r is f u r n is h e d

a p ic k u p tr u c k owned by th e f a rm e r w h ich th e forem an k e e p s i n t h e

r f i e l d . S e v e r a l members o f th e h a r v e st crew a r e c o n sid e r e d r e ­

l i a b l e w o rk e rs and h ave a p p r o p ri a t e d r i v e r s ’ li c e n s e s . The

.forem an o c c a sio n a lly a ssig n s them d ri v in g d u t i e s to tr a n s p o r t

- i n j u r e d o r si c k w o rk e rs to th e h o s p i t a l o f t o t h e i r hom es, o r

t o r e t u r n t o th e b a m w ith a n o th e r w o rk e r a s s is t a n t t o p i c k up

.to o ls o r s u p p li e s, o r to p e rfo rm o th e r s im il a r ad hoc d ri v in g

a ssig n m e n ts. These a ssig n m e n ts a r e n o t p e rfo rm e d on any r e g u l a r
48

Mr, Xavier M. Vela, Administrator

United States Department of Labor

Employment Standards Administration

Wage and Hour Division

January 4, 1973

basis, but these workers have been employed for many years

and in the past have performed such driving duties approximately 20 times during each 20-week harvest season (although

not exactly once a week) and may be reasonably expected to perform such ad hoc driving assignments during coming harvest

seasons. Must these workers register as farm labor contractors?

Must the foreman's truck which is usecl on such a basis to transport employees of the farmer other than the foreman himself be

registered and insured under the Act?

11. An agricultural field foreman employed by a

farmer and solely on his farm is furnished a truck in which

he transports only himself to and from work. He does not transport any other employee of the farmer. He also drives on other

assignments to check the fields, pick up supplies, etc. Must

this foreman register because he is an agricultural employee

and transports himself? ‘ •

12. A field foreman employed full-time year-round

by the farmer hires workers who come individually to the field seeking employment as pickers. These hiring activities involve about 15 minutes each morning. .The foreman is paid a salary

by the farmer; his primary duties are suoervising and coordinating the work. All the workers hirdd become the employees of

the farmer. Neither the foreman nor any other employee of the

farmer does any recruiting, soliciting, or transporting of

agricultural workers. Must this foreman register as a farm

labor contractor?

t

13. A farmer is in hi3 field and sees that there are

oo few harvest workers. He tell3 his foreman, who is his

full-time year-round employee, "Tell the workers to put out

t

s

h

u

e word that we are hiring more pickers." The foreman, purant to this instruction, tells the workers, "We need more

pickers. Tell your friends we are hiring pickers' to join this crew." The pickers pursuant to this instruction do.advise

their relatives, friends, neighbors of the employment opoortunity. As a result of such advice, some of these persons

do come to the farmer’s employment office the next day and

hire on as picker-employees of the farmer. This is a regular

and recurring process throughout the year. (a) Must the farmer

register? (b) Must the foreman register? (c) Must the pickers

who solicited and recruited register?
49

Mr. Xavier M. Vela, Administrator

United States Department of Labor

Employment Standards Administration

Wage and Hour Division

January 4, 1978

14. (a) A fanner maintains a personnel office to

recruit and hire agricultural workers solely for his farming operation. The manager of the nersonnel department

does not personally talk to the agricultural employees during

c the recruiting and hiring process but he does personally

organize, plan, and direct his subordinates who go out to

the surrounding counties to recruit employees for the

fanner’s fanning operation. The manager does .write and

sign Employment Service job orders and does place newspaper

< and radio help wanted ads. Must this manager register as a

farm labor contractor? Is indirect involvement with recruiting and transporting treated the same as direct involvement

with covered activities?

(b) Jones is a full-time year-round employee

of the farmer in the personnel department whose Drimary duty

is to work at the hiring window at which agricultural employees are hired solely for the farmer's operations. Jones

explains the various jobs available, accepts applications,

reviews them and hires workers, subject to the field foreman's 

final approval when they arrive at his field. For many years

all of the workers hired by this farmer have resided within

the county. The hiring process goes on year-round. Must

Jones register as a farm labor contractor?

; (c) A bus pulls up in the personnel office

parking lot and forty workers get off the bus. Each worker

individually applies for employment at Jones' hiring window.

Jones gives 'them individual applications, hires some and

rejects others, and the bus drives away with those who were

rejected. Jones is told at the end of the day that the same

bus came back to the field and picked up those workers who

were hired by him and took them away. The farmer's personnel

department had run "help wanted" ads in the newspaper and

radio but had not asked any person to bring crews to it, had

not offered to pay nor paid any person any fee for bringing

the workers to its hiring window, and did not arrange for or

pay for any transportation for these workers. Does Jones or

► any other employee of this farmer have a duty to inquire who

owns the bus, where the workers came from, whether they have

agreed to pay anyone else a fee, whether the bus is insured, 

whether anyone connected with the bus or group of workers has
f’r. Xavier M. Vela, Administrator

United States Department of Labor

Employment Standards Administration

'fage and Hour Division

J a n u a ry 5, 1973

registered as a farm labor contractor? If 30, what is the

basis and extent of this obligation?

15. Assume the same facts as in question 17(c)

above except that Jones recognizes the bus to be that of

Smith, a well-known crew leader in the county who runs a

day haul operation and charges his crew a head tax and transportation fee. Nevertheless, no employee of this farm has

asked Smith to bring workers to this farm. The workers that 

Smith brought in were individually hired or rejected on the

same basis as all other walk-in employment applicants. Those

hired became employees of the farmer, who paid directly to

them the same wages as were paid to other individual wqrkers.

Ho one, manager or personnel agent, employed by the farmet had 

any dealings whatsoever with Smith or paid anything to him.

Does Jones or any other employee of the farmer have an obligation to inquire into Smith’s dealings with the people that he brought in on the bus or whether Smith is currently registered

as a farm lcibor contractor? If so, what is the basis and 

extent of such obligation? <

16. Assume the same facts as in question 15 above,

but in this case Smith applied to Jones for a job as a tractor

driver and was hired as a tractor driver at the same wages paid

to all other tractor drivers and without any conditions on 

Smith’s employment as to whether or not he brought in or provided any transportation to any other workers. Does Jones or

any other employee of the farmer have a duty to demand to see

Smith’s farm labor contractor registration papers, bus insur-’

ance, etc.? • -

17. (&) A farmer sends a truck to the county seat each

day during the four-month harvest season to pick up a few workers from "the ramp," a well-known gathering place sponsored by

the State Employment Service where workers cone to sell individually their services for the day to various farmers’ representatives who appear. At the end of the work day the farmer's

truck takes the workers back to the ramp where they get in their

cars to go home. Must the driver of this truck be registered

as a farm labor contractor? Must the truck used for this purpose

be registered and insured pursuant to the Farm Labor Contractor

Registration Act?
51

Mr. Xavier M. Vela, Administrator

United States Department of Labor

Dmoloyment Standards Administration

Wage and Hour Division

January 5, 1978

(b) Florida Workmen’s Compensation law novz

applies to agricultural workers, giving them the same protection as is available to industrial workers in the state.

These workers are covered by workmen'sv compensation insurance

from the time they get in the truck at the ramp until the time

they get out of the truck that evening at the ramp, even though

their compensable working time would be less. Florida Workmen's Compensation law also states that it will be the exclusive

source of relief for injuries during the course of employment.

Fla. Stat. § 440.11(1). Assume this state law would preclude

any tort claim against the farmer oc his liability insurance

carrier by any agricultural'or other employees on the bus.

Where all the passengers on the bus are employees subject

to workmen's compensation coverage and no one can collect on

the insurance that might be required on that bu3 by FLCRA,

is it necessary to maintain such insurance-? If so, why?

18. Four' agricultural workers arrange to come to

work each day in one of the worker's car with each of the

three passengers paying.$2.00 per day fop the ride, clearly

in excess of a pro rata share of the cost of operating the

car. The car owners had nothing to do with soliciting, recruiting or hiring his three passengers as employees of the

farmer; the farmer and his agents had nothing to do with this

transportation arrangement. All four are employed as agricultural tractor drivers at the same wage rate by the farmer.

(a) Must the car owner-driver register as a farm labor con- *

tractor? (b) Must the farmer require the car owner-driver to

show farm,labor contractor registration and insurance papers

if the farmer receives information about this payment arrangement? (c) Does the farmer have a duty to inquire whether there

is such a payment arrangement when he sees four workers regularly

arrive and leave in one of the worker's automobile?

19.x The employer recruits agricultural workers through

interstate United States Employment Service job orders. Pursuant to agreement with the Department of Labor, the employer

will advance a prepaid bus ticket to workers who will come to

.Florida to cut sugar cane. Four workers arrive at the Nashville, Tennessee Employment Service office and say they will

cut sugar cane. The Employment Service representative, pursuant to the job order, calls the farmer's personnel office to

obtain the prepaid bus tickets but also mentions that one of the
52

’lr. Xavier M. Vela, Administrator

United States Department of Labor

Employment Standards Administration

Wage and Hour Division

January 5, 1973

workers has a car and all four of the workers desire to

come to Florida in that car. The Employment Service officer

asks whether the farmer will agree to pay the car owner the

equivalent of four bus tickets to cover his car expense, payable when the workers arrive at the farm in Florida. (a) If

the farmer's personnel representative agrees to this proposal,

does the farmer-employer thereby assume any obligation under

FLCRA? (b) Does the farmer’s personnel representative assume

any additional obligation as•a result of this transaction?

(c) Does the car owner-driver have an obligation under FLCRA

as a result of this single isolated transaction? (d) Does the

farmer or his personal representative escape an obligation

under FLCRA to have the driver and the vehicle registered and

properly insured if the personnel representative responds to

the Employment Service inquiry, "Tell the workers we will prepay bus transportation but we will not pay for any other kind

of transportation," but he knows they are driving the car

to Florida to accept the jobs in reliance on the ES job order?

20. Section 3(b)(3) of the Act, 7 U.S.C. § 2042(b)(3), 

exempts any full-time or regular employee of a farmer who performs covered activities for that farmer "on no more than an

incidental basis." (a) What does "incidental" mean? (b) If

an employee of a farmer performs such covered activities once

every day for ten minutes, .is that "incidental?" (c) If he 

performs covered activities as part of his employment every

week for 20 minutes, is that incidental? (d) If he performs

covered activities five times at random times spaced throughout

a five-month harvest season for one hour each time and it is

clear that his duties will require him to perform such covered

Activities to this extent, is this incidental?

We hope you can give us specific guidelines in response

to this question. It is no help to respopd "it depends on the

facts and circumstances of each case," It is no help to state

that "if the farm labor contracting activities are one of the

major or. principal functions of the individual's job" they are

not incidental. It is of little help to tell a farmer that

"those full-time or regular employees who utilize only a limited

portion of their time for farm labor contracting activities"

need not register. Farmers must have some specific guidelines

before they can be held to a statutory duty backed by a threat
53

Hr. Xavier *1. Vela, Administrator

United States Department of Labor

Employment Standards Administration

Wage and Hour Division

January 5, 1978

of three years in prison for failure’to register, We hope you

will not duck this question.

21. We understand that the Wage-Hour Division in

enforcing FLORA asserts that if farm labor contractor duties *

are a "regular and recurring" duty of any employee of any

farmer, even though they1 may take only five minutes time each'

day or week, such duties are "more than incidental." (a) Is

this a correct statement of the Wage-Hour Division's enforcement policy? (b) If so, how do you reconcile that int^rpfatation with the intent of Congress published in the Senate

Report Mo. 93-1295, Calendar No. 1228 at page 7.(quoted in part

on page 2 of your October 3, 1977 Opinion Letter) stating "that

foremen and similar bona fide employees will not have to register

as farm labor contractors" if it can be shown, for axamole, that 

they are full-time and permanent employees of an employer "who

utilize a limited portion of their time for activities as defined in 5 3(b). of the Act?" (c) Is the te3t of "incidental"

whether the activity is "regular or recurring" or is the test

what percentage of the person's work time is devoted to such 

activities? If the test is a percentage of time, what percentage? Cannot stated percentages be used as are used in

Wage-Hour exemptions?
54

Mrs. Collins. Our next witness is going to be Mr. John Ebbott, the

d

W

irector of litigation for the Migrant Legal Action Program, Inc., ashington, D.C.

Mr. Ebbott, would you tell us who is accompanying you, please ?

STATEMENT OF JOHN EBBOTT, DIRECTOR OF LITIGATION,

MIGRANT LEGAL ACTION PROGRAM, INC., WASHINGTON, D.C.;

ACCOMPANIED BY GEORGE E. CARR, CHIEF ATTORNEY,

LEGAL AID BUREAU, INC., SALISBURY, MD.; AND ART READ,

CAMDEN REGIONAL LEGAL SERVICES, INC., CAMDEN, N J.

Mr. Ebbott. Yes, Madam Chairwoman.

I am accompanied by attorney George Carr from the Legal Aid

Bureau in Maryland and attorney Arthur Read from the Camden

Regional Legal Services in New Jersey.

Mrs. Collins. Thank you.

May we ask the same thing of you, please? We would like you to

submit your testimony in its entirety in the record, and would like

you to please summarize it because we do have other witnesses, and our

time is shorter than we would like to have it.

M

Mr. Ebbott. I would be happy to do that, Madam Chairwoman.

M

rs. Collins. Without objection, it will be included in the record.

r. Ebbott. We appreciate the opportunity extended us to testify

before you this morning. Mr. Carr represents migrant farmworkers

in the States of Maryland and Delaware; and Mr. Read represents

M

migrant farmworkers in the State of New Jersey. I work with the

igrants Legal Action Program which is a national support center for

attorneys and paralegals, such as Mr. Carr and Mr. Read around the

country.

In the course of our work, we have accumulated a certain body of

experience which we would like to share this morning.

M

To begin, I think the analysis offered by Congressman Maguire and

r. Shaw7

is correct, although I do not know where Mr. Shaw got

his percentages. I think the analysis is correct. We ought to look, when

W

we discuss these proposals, at what is actually going on in the field:

hat are the abuses ?

The abuses that the Farm Labor Contractor Registration Act was

initially intended to cover continue, to a great extent, today. There has

been minor improvement, but the abuses are still going on. What happens to migrant farmworkers is generally that they are misled when

they are recruited as to what the wages and working conditions will be.

They are not given disclosure. They are often transported to the worksite or at the worksite in uninsured and unsafe vehicles.

When they get to the worksite, they find that the housing is terrible:

Filthy and disgusting conditions. They find that they are not being

paid as much as they thought they were going to be paid. They find

that not nearly as much work is available as was told them when they

were recruited—maybe they were recruited about 1,000 miles away

from the worksite.

Thev find that when they do eret work, their first paycheck may be

about $5 because of the huge deductions that have been taken out, deductions for which they have been given no record.

Probably one of the maior points that we have to make today is to

dispute the one percent/99 percent figure offered by Mr. Shaw. We
55

think that the abuse by corporate agribusiness is much more widespread than 1percent.

Mrs. Collixs. What percent do you think it is?

Mr. Ebbott. A conservative estimate of mine—and it is an estimate—would be around 50 percent. What we have done is to document

a number of these instances. We do not just have one or two; we have

a number of instances; and I request that you direct your attention

to exhibit A where we have compiled some of thees.

In addition, I have more exhibits that I would like to offer involving 

agribusiness corporations in Florida and Illinois, among others.

Also, an additional factor that has not been raised is that the traditional middleman or transient crew leader is often hired by corporate agribusiness to do its recruiting, and some of the worst of these

traditional crew leaders have been used by agribusiness to do their

recruiting for them.

There have been instances of peonage, in fact, that still continue

today.

Mr. Maguire. Excuse me. Could I just interrupt to ask, if that were

the description of the relationship between the contractor and the

hiring entity, would they be excluded from the law if the word “personally” were to be taken out?

Mr. Ebbott. Yes; they would be excluded from the law if the word

“personally” were to be taken out, and they would especially be excluded from the law if the phrase “on more than an incidental basis”

was taken out.

Mr. Maguire. Thank you.

Mr. Butler. Pursuing that, what would you recommend under those

circumstances, in terms of legal redress to the abused employee?

Mr. Ebbott. I would recommend the statute as it is now. It is a very

effective------

Mr. Butler. No; no. If the change which was the basis of the gentleman’s inquiry were out of the law—and you have cited several instances of abuse—and you were the lawyer for the employee—that is

what you are—what redress would he have?

Mr. Ebbott. That is the difficulty. He would have very little.

Mr. Butler. If a man beats you up, you do not have any redress?

Mr. Ebbott. Not very much, and Mr. Read will get into the effort

it takes to get redress.

Mr. Butler. Well, do we have criminal laws? I will ask the gentleman if it is against the law to beat anybody up in New Jersey.

Mr. Maguire. I believe that it is, but I am not sure if that-----

Mr. Butler. I know it is the practice, but I am asking if there

is a law.

Mr. Maguire. I am not sure that necessarily resolves all of the

issues before us.

Mr. Ebbott. The law is there, Congressman, but whether it is an

effective remedy is quite another matter.

Mr. Butler. You are a lawyer, and maybe you are not meeting 

your responsibilities if you do not go after them.

Mr. Ebbott. I am familiar with the way the legal system operates

also, especially in a rural county. When I practiced on behalf of

farmworkers in Wisconsin, two State migrant inspectors were beaten 

up by a couple of growers; criminal charges were brought, and they
were acquitted. So, oftentimes there is a difference between the existence of a State criminal law on the books and effective conviction

in the courts.

An additional aspect we would like to point out is that corporate

abuse affects many more farmworkers than does abuse by the socalled “traditional” crewleader. A “traditional” crewleader may bring

10, 20, or 30 people up; some people have larger crews than that. But

corporations, being generally huge entities—multimillion-dollar enterprises—hire many, many more workers than individuals. So, an

abuse which they perpetrate is going to affect many more persons that

the statute was designed to protect.

Agribusiness has also claimed that they are being overregulated

because of the statute—they are being overregulated by the Department of Labor. That is absolutely not true. The Department of Labor

has been given this past fiscal year 58 work-years of enforcement time,

which is quite a small amount to police the whole nation for FLORA

abuses. I do not think agribusiness can legitimately claim to be overregulated given that.

In addition to that, the Department of Labor’s use of that 58

work-year amount is only 31.9 work-years, so they are not even using the total amount available to them.

Just a word about this tractor incident. It is possible that there

are some errors of judgment by compliance officers; we will not dispute that; but the point that is overlooked in that example is that

if three people are riding on the back of a tractor, one, it is dangerous; it is not a legitimate practice. Any farmer knows—and I have

been one— that that is a dangerous practice. Whether that comes

under the Farm Labor Contractor Registration Act or not is another matter, and maybe the compliance officer committed an error

of judgment. But I do not think that warrants exempting agribusiness from the statute altogether.

Air. Butler. What is your opinion about that particular situation?

Do you think it was the intention of the act to direct itself to how

many people ride on a tractor ?

Mr. Ebbott. I do not think that was the primarv intention of the

act. In that situation, if it was within the 25-mile radius and occurred less than 30 weeks of the year, it is exempt from the act, and 

maybe the compliance officer made a mistake. But I stress that that

is one example. Anyone can come up with one horror story; it is a

different matter to show a pattern and practice.

The Department of Labor overall—and our written testimony goes

into this—has failed to enforce the statute. There have been some

recent areas of improvement and some recent attempts by the Department to better enforce the statute, but overall there has been a

failure to enforce.

The answer to the current abuses being visited upon farmworkers

by agribusiness as well as by individual crewleaders is much more

effective enforcement by the Department of Labor, and the legal remedies in the statute that we as lawyers, and farmworkers themselves,

can use under the statute. The answer is not to exempt agribusiness

and to exempt the “regular” employees of agribusiness from any coverage whatsoever under the statute.
57

As was mentioned earlier, there is now an attempt being made by

agribusiness to do just that in the Senate. Until this morning’s Post

article and until this hearing, that attempt was being kept pretty

quiet. The idea, as we understand it, is to work toward a midnight

rider—a nongermane rider—to an agricultural piece of legislation

that is going to come out of the Senate Agriculture Committee and

go to conference with the House Agriculture Committee, both committees being more sympathetic to agribusiness than they are to farm

labor.

Agribusiness and their crewleaders are afraid to let these amendments see the light of day because they have something to hide. W hat

4 they have to hide is their current and future recruiting abuses and

their intention to continue those.

Thank you very much.

Mrs. Collins. Mr. Carr ?

w Mr. Carr. Thank you, Madam Chairwoman.

As Mr. Ebbott mentioned, I practice law in Salisbury, Md., and I

represent migrant farmworkers in both Maryland and Delaware.

I would like to join with Mr. Ebbott in thanking the subcommittee for affording us this opportunity to appear before it. This is the

first time I have ever testified before a congressional committee. Unlike Mr. Shaw, our clients do not seem to enjoy the same access to

the legislative processes as his clients.

Madam Chairwoman, I believe the record of the Department of

Labor’s enforcement activities under the Farm Labor Contractor

Registration Act could lead only the most cynical person to conclude

the FLCRA is a law that has gone wild. As Mr. Ebbott mentioned,

the Department has only used 31.9 man-years of its FLCRA time

instead of the promised 58. The results obtained from these 31.9 manyears of effort have been much less than impressive.

Nationwide, the Department of Labor, during its past fiscal year,

encountered only 25 instances of misrepresentation by farm labor contractors to farmworkers. The Department only encountered 24 instances of farm labor contractors failing to abide by the terms of

employment contracts.

I would like to extend an invitation to the members of the committee to come with me to my service area on the Delmarva Peninsula during the height of the next growing season. I am relatively certain we

* could find more than 25 circumstances of misrepresentation in a very

short period of time.

The Baltimore area office of the Wage and Hour Administration

which is responsible for administering FLCRA in my service area

* encountered no instances of worker misrepresentation during its past

fiscal year.

Members of the committee, in June of this year I reported that crewleader Marcus Portalatin was working in Delaware. Mr. Read will go

on to describe to you what happened as a result of Mr. Portalatin’s

activities on the peninsula this year. It is absolutely incredible that

the Department of Labor could have made any good faith investigation into that situation and come up with the conclusion that there was

no misrepresentation to the members of that crew.

The Department of Labor reports that it found 158 housing violations in 706 inspections of labor camps during its past fiscal year. In
58

other words, the Department contends that it found housing violations

in less than 23 percent of its housing inspections. The Baltimore area

office found 17 violations, it says, in 41 inspections.

Again, I would like to invite you to come to the peninsula. I think

we can find more than 17 violations in a very short period of time.

Mrs. Collins.We appreciate the invitation. I have a feeling that the

subcommittee will be accepting such an invitation. Thank you.

Mr. Carr. I appreciate that.

Madam Chairwoman, with your leave, I would like to show the members of the subcommittee some pictures of the largest labor camp in

my service area in order that you might get a sense of what it means

when the Department fails to adeouatelv enforce the law.

M

+

rs. Collins. Doyou have the pictures here ?

Mr. Carr. Yes; I do.

TPictures shown.]

Mrs. Collins. I s this the Westover camp? Has it been cited for

hou

r

sing violations?

Mr. Carr. Yes. The Westover camp houses approximatelv 750 migrant farmworkers, and it is located about 150 miles from this building. As a matter of fact, the operators of that labor camp facility, the

Somerset Growers, Inc., have been cited by the Maryland Occupational

Safety and Health Administration, I believe for the first time, and have been requested to pay a fine of $1,200.

Madam Chairwoman, from my own personal knowledge and my

own contacts within the farmworker community, I know that this

labor camp has been subject to these conditions for much longer than

3 years. The reliable people in my service area advise me that the conditions in this labor facility at this time are now worse than they were

5 years ago.

Mrs. Collins. When were these pictures taken ?

Mr. Carr. These pictures were taken in August of 1979.

At the request of the Legal Aid Bureau, an expert who is familiar

with the problems of institutional living toured the Westover facility.

The expert related to me at the conclusion of his tour that this was

one of the worst residential facilities he had ever seen. I regarded this

as somewhat of a shocking statement because this individual had testified in a large number of prisoners’ rights cases regarding jail conditions. But on further reflection, I began to think that this statement

was not that shocking after all.

Originally, the Westover labor camp or most of the buildings in the

Westover labor camp were used as barracks for the Civilian Conservation Corps. In World War II, those buildings were used to house

prisoners of war. Now they house migrant workers. '

The lists of crewdeaders who have been acting in the Westover

facility for the past several years, compiled bv'migrant service agencies, show that the majoritv of the crewleaders which were working

in the Westover labor facility were never authorized to house by the

Department of Labor, as required by Federal law. A check with the

public registry compiled by the Department of Labor suggests that no

sanctions have ever been applied to crewleaders operating in the Westover facility without obtaining housing authorization. A check with

the public registry shows that the Somerset Growers, Inc., is not regis-
59

tered as a farm labor contractor and has never been cited under the

terms of FLCRA.

Madam Chairwoman, from my own knowledge, during this past

year there was one crew leader operating in Westover who did not even

have a certificate of registration. This crew leader remained undetected

by the Department of Labor’s compliance officers throughout the

entire growing season.

Mrs. Collins. Mr. Carr, let me say that you are showing a pattern of

this kind of thing, and I am glad that you are pointing it out.

I wonder if we could turn to Mr. Read at this time and get his summary so that we can begin asking some questions.

$ Mr. Carr. I will be glad to yield to Mr. Read.

Mrs. Collins. Thank you.

Mr. Read?

Mr. Read. Madam Chairwoman, I am very happy these hearings are

being held today, and I would like to express my personal thanks to

Congressman Maguire as well because I am aware that his initial call

for these hearings followed the attack on me by a farm labor contractor in New Jersey in which I was nearly killed.

I am, relatively speaking in terms of the people with whom I am

testifying here today, a novice in terms of the rights of migrant farmworkers. My own background is in having been a union attorney for a

law firm in New York for several years, and I have only begun farmworkers’work since last May.

In that time, however, I must say that I have come to realize that, in

fact, the conditions of migrant farmworkers are still amongst the

worst of any workers in this country.

When we hear from the grower interests, particularly the corporate

grower interests, of overregulation and farmworkers having many

other sources of rights, it is hard for me to believe that those statements

are put forward with a straight face at all. In fact, the Farm Labor

Contractor Registration Act is virtually the only law which gives substantive protections to farmworkers and which gives them a right of

action to enforce those rights.

I might add that it took me approximately a week to learn all the

laws that govern migrant farmworkers, basically, backwards and forwards: The Fair Labor Standards Act, the Farm Labor Contractor

Registration Act, and to some extent the Wagner-Peyser Act, and

• OSHA. Other than these laws, there is basically no law governing

migrant farmworkers. In most States, there are no protections for the

rights of agricultural workers to organize.

Madam Chairwoman, when we look at the statistics of the growers on

** failure to enforce FLCRA, we agree that the U.S. Department of Labor has failed to enforce FLCRA. We do not agree, however, that that

means that there are no abuses.

When we look at statistics that talk about technical violations, we

agree that the U.S. Department of Labor generally finds only technical violations. Where we disagree is that we feel that that is due to improperly trained, improperly staffed U.S. Department of Labor offices

in which individuals are not trained to look for the serious violations.

In particular, in relation to Mr. Marcos Portalatin, Mr. Portalatin

is a 44-year-old 300-pound labor contractor. For 20 years he has operated in the South Jersey area. As detailed in my statement, amongst
other things, he attacked a paralegal from my office 5 years ago; he

attacked a State assemblyman from New Jersey 5 years ago; he was

tried on slavery charges 5 years ago. On all of those charges except

one, he was acquitted, which speaks to the effectiveness of criminal law.

In the one case, he was given a $25 fine for drawing a knife on someone

from my office and chasing them off the farm.

Mr. Butler. Perhaps I might make an inquiry here. Of course, I do

not know a thing about this, except for your testimony, but the first

presentation is that he attacked a paralegal from the Camden regional

office with a knife when the paralegal came to the farm where he was

crewleader to speak to workers there.

Does the Legal Services Corporation go on to the farms and try to

do this presentation—or whatever you do? Do you do that on the

man’s property itself?

Mr. Read. Mr. Butler, I do not want to get into what I consider to

be a peripheral point in this hearing, however, the Supreme Court of

the State of New Jersey in a case involving the Camden Regional Legal Services, a case called State v. Shack, held that there is

a right for migrant workers to have representatives from agencies

such as Legal Services and such as a social services agency come into

migrant labor camps in order to speak to individuals there. That is a

well-established right in New Jersey which was established before

1974. T believe the case dates back to approximately 1971.

New Jersey is one of the few States, I would note, where such a

right of access has been recognized by the courts and is at this point,

as a matter of law, unquestioned.

Perhaps I could go on to the principal areas involved here.

This year, we learned that Mr. Portalatin was operating in Delaware, and we subsequently learned that he was coming back into New

Jersey. At this time, his operation was as an apparent regular employee of a corporation, someone who would, under the amendments

that are being proposed, be exempt altogether from the provisions

of the act. He worked for a corporation called Leonard Farms Corp.,

a Delaware corporation which had its principal headquarters in New

Jersey and which had rented approximately 10 fields in Delaware for

asparagus operations.

Mr. Portalatin was apparently asked to recruit 30 to 40 workers,

who were all, I will note, illegally recruited in Puerto Rico from laws

which require recruiting to go through the Puerto Rico Department

of Labor.

Mr. Portalatin, according to our clients—and we now represent approximately 24 of his former workers—made promises to the workers

that they would clear from $180 to $200 a week, that they would have

excellent living conditions, they would have 6 months of steady employment, that they would have a day off a week. These representations, I would note, were virtually uniformly made to workers who

were in their teens, who did not speak English, who had never before

worked on the U.S. mainland.

These, workers came to the United States, and they found very different living conditions and very different working conditions. They

were worked up to 80 or 90 hours a week 7 davs a week from 5 in the

morning to as long as 5 p.m.. with a 3-minute break at about 10 in the

morning and a 5- to 10-minute break at about noon for food. Other
61

than that, these workers worked nonstop. They were not allowed to

leave the camp. The only time they were allowed to leave the camp

was when they went to a coin laundry where Mr. Portalatin would

patrol to make sure they did not leave.

These workers were paid at the end of their first, week of employment—many of them—as little as a penny after deductions were made

by Mr. Portalatin.

' I have noted, in relation to the proposal by the growers, that payment by check does not solve this problem. Back in New Jersey, these

same workers were paid by check by the farmer. However, Mr.

Portalatin would not give the checks to the workers until they signed

, them over to him, he cashed them, and took the deductions out of

those checks. That I can testify to personally because at the time

when I was in Mr. Portalatin’s kitchen to pick up paychecks, that

was exactly what he wanted me to do. Out of a $58.50 check for one

n worker, he wanted me to sign the check on behalf of the worker,

return $57 to him, and he would give the worker $1.50. This is how

checks will work. Checks are not a solution.

In relation to the comments of Mr. Carr on the U.S. Department

of Labor and Mr. Portalatin, we discovered that the U.S. Department of Labor found out about Mr. Portalatin’s operations before

we did—in May 1979—that they went into the camp, and that they

did not speak to workers, that they did not obtain the books and

records, that they did nothing other than determine that Mr. Portalatin was an unregistered contractor, told him that he should register, explained to him his obligations under the act, and then made

a decision that no further action would be taken, except for the

assessment of some minor civil penalties.

Immediately following that, Mr. Portalatin again sent his daughter to Puerto Rico and recruited another group of workers and

treated them similarly badly. Again, no correct representations of

employment, no written representation, et cetera.

Mrs. Collins. Mr. Read, let me ask you about Mr. Portalatin.

Does not word get back to Puerto Rico that if you are dealing with

this guy you are going to be heading for trouble? How can this

recur year in, year out?

Mr. Read. Perhaps I can explain how that happens.

The recruitment in this case is largely in a small mountainous

* village in Puerto Rico called Cidra which has perhaps 3,000 to 4,000

people spread out over a large area. Except for one worker, whom

I would refer to as one of Mr. Portalatin’s henchmen, there was no

one who had worked for Mr. Portalatin from that village.

’ Mr. Portalatin came in—he can be a charming man as long as he

is not being violent—and made various promises to the workers that

they had no reason to disbelieve. These are young men. As I said, most

of them were 16 to 20 years old and had never before had any contact

with him.

Puerto Rico is a relatively spread out island with very poor communications, and it was not difficult in Puerto Rico.

Mrs. Collins. All right. Thank you.

I am just plain shocked at what I have read in your testimony 

and what has been pointed out here. There were workers who received

one penny or no pay at all. I find this very disturbing. I think I read

68-643 0 - 8 0 - 5
62

in one of these statements that workers had been beaten—in your

testimony, I believe, Mr. Read.

Mr. Read. The Portalatin workers.

Mrs. Collins. Yes; they had been beaten. I find this appalling.

I just do not know what to say about it. But I do have some questions

that I want to ask.

It is my understanding that growers contend it is expensive for them

to maintain housing because the housing will be used for maybe 5 or 6

weeks. What is your comment on that ?

Mr. Ebbott. Maybe Mr. Carr can answer that.

Mrs. Collins. Mr. Carr?

Air. Carr. Madam Chairwoman, the Farmers Home Administration ,

makes available through sections 514 and 516 of the 1949 Housing Act

low-interest loans to any grower association which would like to build decent, sanitary, and safe housing for migrant workers who are work­ ing for those growers. r.

Under the present administration of Mr. Gordon Cavanaugh, the

current Administrator of the Farmers Home Administration, the

Farmers Home Administration is extremely anxious to make sure that

all of the money which the Congress of the United States has authorized for this housing be distributed to people who can manage this kind

of housing. In fact, in my part of Maryland, Farmers Home has been

trying for some years to find somebody to build a decent, sanitary, and

safe labor camp. But, in fact, they cannot find anyone to do that.

Airs. Collins. Why ?

Air. Carr. The growers refuse to be responsible or to be individually

liable on a 1-percent note. AVhat they are doing is making a very coldblooded economic calculation. They are saying to themselves that they

are going to have to pay less money by risking exposure to those other

conditions of the labor camps in southern Alaryland; they are preferring that economic possibility over having to pay a 1-percent note.

Airs. Collins.What do you think would happen if housing laws were

to be vigorously enforced ?

Air. Carr. Well, Madam Chairwoman, since the growers appear to

be engaging in this economic calculus, the only thing I can suggest is

that the Department has to become more vigorous in enforcing the OSHA standards.

Airs. Colltnr. Do you think that the growers will tear down the old

substandard housing and build new housing, if the law is vigorously <

enforced ?

Mr. Carr. I would think that would have to be one alternative they

would want to consider.

Mrs. Collins. Would there be other alternatives if the law were ”

vigorously enforced ?

Mr. Carr. There have been occasions where growers have just left

their crews without any housing at all, but I do not see how growers

operating in Maryland could recruit workers in South Florida if they

made adequate disclosure to them, showing that there would be no

housing.

Mrs. Collins. So, if the law were vigorously enforced, the likelihood

would be that the growers would build safe and sanitary housing?

Mr. Carr. I believe that most growers are not wholly malicious, and

I believe that is what they would prefer to do.
63

Mr. Read. I would also note, Madam Chairwoman, that one of the

other issues is maintenance of housing which is built.

Mrs. Collins. 1 have read that some of the growers say that workers

tear the housing down, they destroy the walls, they break up the toilets, 

and so forth. What is your comment on that?

Mr. Read. Madam Chairwoman, in that regard, let me indicate that I

have here some photographs of housing in New Jersey; each of which

has on the back a commentary on what the photographs represent. I

can also give you additional copies of the commentaries.

[Photos shown.]

Mrs. Collins. What are your comments on the statements that some

of the workerstear the housing down ?

Mr. Read. The growers house a very large number of individuals in

a very small space for a period of time. In the Portalatin camp, for

instance, workers had no space to put clothes; their beds were 2 feet

apart; as many as 30 or 40 workers were housed in housing which, according to OSHA standards, should only house seven workers.

Under those kinds of conditions, it is virtually impossible for things

like toilets not to breakdown; it is virtually impossible for housing to

remain in good condition when it is overutilized. And that is precisely

what happens.

Mrs. Collins. I s overcrowding typical ?

Mr. Read. Overcrowding is one of the things which OSHA standards would address if they were correctly enforced.

Mrs. Collins. But you do not know if it istypical ?

Mr. Read. I believe overcrowding is a typical problem.

Mrs. Collins. But you do not have data on that ?

Mr. Carr. There cannot be any data because there has not been any

systematic effort by any agency of government to measure the farmworker population, to accurately depict the living conditions.

Mr. Ebbott. Madam Chairwoman, let me add to that if I may that

maintaining proper housing is a cost of doing business, just as maintaining proper machinery is a cost of doing business. Some of the

machines that agribusiness maintains are used no more during the

year, in fact maybe a shorter period during the year, than the handharvest labor that is used. I do not hear too many complaints—although maybe in private they make them—from agribusiness about

the increasing cost of a shorting combine, for instance, or a corn sheller. But there are constant complaints about the cost of maintaining

housing for human beings, and I just think they put their priorities

on the cost of doing business in the wrong place.

Mrs. Collins. In your opinion, how many camps are substandard ?

Mr. Ebbott. A number of a percentage ?

Mrs. Collins. A percentage.

Mr. Ebbott. Well, if the standard is a state or federal code, I would

say about 80 or 85 percent.

Mrs. Collins.What would you base that on ?

Mr. Ebbott. I guess on my experience in working with farm labor

housing in Wisconsin. For seriously substandard, the percentage will

go down somewhat. But since there has been no survey, it is difficult

to really come up with an absolute number or a percentage, but the

best I can do for you to be accurate is to say a majority.
64

Mrs. Collins. I was very interested when I read about your experience here, that you say on page 2, that all of the workers are exploited

in the recruitment process. Do you really mean all of them? This is on

page 2 of your full statement, Mr. Ebbott, four lines from the top.

Please elaborate on that for me.

Mr. E bbott. The basis for that statement is, again, my experience

and the experience we have accumulated based on surveys of farmworkers around the country by farm labor attorneys and paralegals.

I think we can say that there is no case of recruitment in the country

where there is not some case of exploitation involved.

I do not know where you could ever come up with a case of complete,

full disclosure of all the meaningful wages and working conditions.

That is what I mean by exploitation. The workers have a right to know

exactly what they are getting into, and when they are shown something

less than that, they are misrepresented or exploited.

Mrs. Collins. Rut do not some of the workers go back to the same

camps year after year ? Do they not know what conditions are going

to be before they leave wherever they are coming from ?

Mr. E bbott. No, not necessarily.

I had a case where the workers were at one corporation for one

harvest season. There was a certain number of acres they were harvesting. Before they left that year, they were told, “Come on up next

year; we are going to have the same number of acres and crops.” So

they thought they knew what the conditions were. They came up the

next year, and because of a decision by management, there was half

that number of acres and much less work.

So, it is not at all the case that, because they have been there 1 year,

they are going to know what the conditions are the next year.

Mrs. Collins. But then they go back the third year to that same

camp.

Mr. E bbott. Sometimes they do n o t; sometimes they do. Mrs. Collins. Knowing they have been fooled once, or misled once, 

why do they go back ? It is my understanding that there is a pattern

of workers going to the same camp year after year.

Mr. E bbott. They do not have a great deal of job selection opportunity. They have to make really hard choices, and although they may

be exploited 60 percent by one employer, that is better than some of

the other employers available. So, there is not that much that the

workers can really do to create an exploitation-free environment.

Ms. Collins. Do these workers not begin to know who the recruiters are, who the crew leaders are in these various places? They travel

throughout the areas year after year. It would seem to me—and tell

me if I am wrong—that once recruiter x has taken workers to some

place where they have been improperly fed, where the housing is

awful, when he comes back into that area again, those people are not

going to want to go with him to the place he is supposed to be recruiting people for. Do you find this happening? Or do they just blindly

say, “We will just see what is going to happen?” I just do not see

a human being doing that.

Mr. E bbott. Mr. Carr would like to answer that.

Mrs. Collins. Mr. Carr ?

Mr. Carr. First of all, I have to take exception with the perception

that there is a pattern of workers returning to the same labor camps
65

year after year. If workers do repeat, I can tell you from my experiences of living in Florida for 19 months, it is the conditions of

dire poverty in one of the most depressed areas in the entire United

States, which force these people to leave south Florida at the end of

the Florida growing season. They have no choice; they must leave.

As far as developing knowledge as to who the bad crew leaders

are, I have found many farm labor contractors with a strange reticence in identifying themselves fully to the members of their crew.

When I moved into the area, one of my first experiences was a

farmworker coming into my office and saying he had been working

for a man named Sunset. He did not know7 anything more about that

farm labor contractor.

If the committee would like, we could probably document several

hundred instances of people coming into contact with contractors for

the very first time and being subjected to these kinds of abuses.

Mr. Read. I would also note, Madam Chairwoman, that that is one

of the reasons why Congress requires fingerprinting, w’hich so

much fun has been made of by the grower interests. It is because

many of these people might use false names in the registration process otherwise, and it is therefore a necessary enforcement tool in the

law.

Mrs. Collins. Thank you.

Mr. Butler.Thank you, Madam Chairwoman.

I have interrupted several times, so I will not take but a second.

But what is not clear to me is exactly the role of the Legal Services

Corporation with the Department of Labor.

The Department of Labor, of course, has the responsibility for

enforcement. Do you have a resource center? Where are you located?

Mr. Ebbott.Here in Washington.

Mr. Butler.Howlarge is your staff ?

Mr. Ebbott.We are about 10 attorneys.

Mr. Butler. Here in Washington ?

Mr. Ebbott.That isright.

Mr. Butler. And you provide technical assistance to the employees

of the Legal Services Corporation, like in Maryland, New Jersey, and 

thereabouts ?

Mr. Ebbott.That is correct.

Mr. Butler. I s it your feeling that when the Department of Labor

fails in its enforcement responsibilities, you—the attorneys—should

then go out and substitute for the Department of Labor in enforcement ?As a support center, what do you advise your lawyers that your

relationship with the Department of Labor should be?

Mr. Ebbott. The relationship should be a complementary one. Migrant farmworkers have a private cause of action for money damages

under the statute, and that is a good thing. So, what we advise field

people is, if possible, to establish a wmrking relationship with a local

area officer or compliance officer in a particular area, to work together

on these abuses.

But what frequently occurs is that the Department of Labor is not

there or is not there with sufficient thoroughness or speed, and they

become useless in terms of protecting the farmworkers’ rights, and

we have to go to court and sue on the farmworkers’ behalf.
66

Mr. Butler. Going to court, I think, is an appropriate thing for a

lawyer to do for his client. I just wonder whether it is an appropriate

thing for you to take an assignment and go into his kitchen and challenge him, knowing that he has already stabbed one of your cohorts

with a knife.

Mr. Read. May I comment as a point of personal privilege, Mr.

Butler?

M

M

r. Butler. Your personal privilege was going into the kitchen?

r. Read. No, sir.

The reason we were there was that we were at the invitation of the

crewleader to pick up paychecks. There was no intention to challenge.

I do not want to go into the facts of the case at length because there

is an assault with intent to kill charge pending in criminal court in

the State of New Jersey. But I do take exception to the characterization you make.

Mr. Butler. Well, you are privileged to do that, but I think it is

extremely poor judgment.

Mr. Read. But you should attempt to study the facts a little more

before making those kinds of characterizations.

Mr. Butler. I thank you, and you are, of course, privileged to put

the facts in the record, but I want to note that it is pretty poor

judgment.

Now, we are getting to the question of civil relief. What about the

use of the private cause of action that you mentioned before? How

often are you doing that ? It seems to me that that is what the Legal

Services Corporation ought to be doing if the Department of Labor

fails. So I would like to know what you are doing in this regard.

Mr. Ebbott. We are doing that, Mr. Congressipan.

I would like to just briefly respond to the first question. It is our

obligation before we go to court to try to work out and negotiate things

with the potential defendant. We are not supposed to run right into 

court on any issue. So, it is perfectly appropriate, and we are obligated. to go work out these arrangements before we run into court.

That is what Mr. Read was doing.

We are using the private cause of action, and it has been fairly

effective for us. One of the concerns is that, if these amendments go

through, the heart will be cut out of the Farm Labor Contractor

Registration Act; there will be nobody left to use it against to give us

anv relief.

Mr. Butler. Air. Carr, how often have you brought a course of

action under section 12(a) ?

Mr. Carr. Section 12(a) ?

Mr. Butler. The civil relief section.

Mr. Carr. I could not tell you the number of cases I have filed. I

estimate that I have worked on at least 25 cases.

Mr. Butler. And how often have you filed suit ?

Mr. Carr. The 25 cases which I referred to are cases which are in

litigation.

Mr. Butler. They are in the courts now ?

Mr. Carr. Right. It is not a simple, cut and dried matter. It does not

work that you just file a complaint, one simple complaint, and let the

matter go at that. Like other lawyers, we consult with our colleagues
67

and try to help such other out on litigation problems as these cases

develop.

Mr. Read. Mr. Butler, I would also like to note that one of the reasons we file complaints with the U.S. Department of Labor on behalf

of our clients is the criminal provisions of the act.

Tn relation to Mr. Portalatin, we have asked the U.S. Department

of Labor to pursue an active investigation for the possibility of seeking criminal sanctions. That is one of the responsibilities of the U.S.

Department of Labor which we, as private attorneys representing

private litigants, cannot enforce. Therefore, it is necessary to proceed

by that route, as well as the injunctive penalties under the act which

would strip an unscrupulous farm labor contractor of his registration.

Mr. Butler. Excuse me; I do not know about the injunctive penalties. Is the Department of Labor privileged to go to court for an

injunction ?

Mr. Ebbott. Yes; it is.

Mr. Butler. And how often have you been successful in persuading

them to do that ?

Mr. Carr. I am unaware of any case where the Department has done

that.

Mr. Read. But they do have civil injunctions against certain individuals. Generally speaking, my understanding—and I have not been

involved in any of these—is that these are frequently entered into as

consent judgments where the individual says, “I will not in the future

do ‘a?.’ ” The problem is followup enforcement of those consent judgments, whether they are followed up by the Department of Labor to

see, in fact, whether that person continuesto do that.

Mr. Ebbott. In addition, there is no admission of liability, generally, with a consent judgment, so it is not possible to build a record

of repeat violations so that more serious sanctions can be imposed.

Mr. Butler. These consent decrees that we are talking about, have

they, in your experience, been employed in New Jersey, Delaware, or

Maryland ?

Mr. Carr. There are a large number of civil injunctions voluntarily

entered into between the Department of Labor and a large number

of farm labor contractors in Maryland and Delaware.

Mr. Butler. You mean they are not in the Federal court system?

Mr. Carr. They are in the Federal court system, but basically they

do not have much effect.

Mr. Butler. They do not have much effect until the second time

around.

Mr. Carr. Even then.

There is a crewleader named Harold Beaver that I had some working relationship with in south Florida who was the subject of injunctive action by the Department of Labor. After an extensive effort to

try to get the Department of Labor to seek contempt sanctions against

Mr. Beaver, they finally did obtain a $250 fine against him for that

contempt; payment of court costs. I believe, in North Carolina. I

believe Mr. Beaver realizes more than that amount in 1 week’s

operation.

Mr. Butler. Mr. Read, how many times, just for the record, have

you filed suit under section 12 for civil relief?
68

Mr. Read. Sir, it is the policy of our office, when we •feel that there

are appropriate suits, to file suits. As I said, I have only been associated with the Camden Regional Legal Services since last May. We

have currently in the office a lawsuit, with which I am involved, with

Puerto Rico Legal Services involving Mr. Portalatin and the farmers

employing him and members of his family.

We also have a major Farm Labor Contractor Registration Act lawsuit pending against the major grower association in New Jersey,

Glassboro Service Association.

I would note in relation to the cooperation between us and the Department of Labor, there is litigation covering most of the previous 10

years of Glassboro’s operations in relation to activities as employers to

deprive their employees of their rights. Recently, I believe, the Department of Labor has recovered $300,000 in backpay settlements for

money illegally deducted from workers’ pay by the growers’ association and some 300 farmworkers.

Mr. Butler. It is your practice to suggest to individuals that they

file suits under this section ?

Mr. Read. Mr. Butler, it is our practice to pursue all available legal

remedies to bring our clients their rights. These include persuading

agencies which can bring criminal prosecutions to pursue those prosecutions; that includes persuading governmental agencies which enforce those laws to enforce those laws; and that includes going into 

court on behalf of those clients.

Mr. Butler. Have you ever filed a suit as an attorney for an individual migrant worker under this section ?

Mr. Read. Yes, sir.

Mr. Butler. How often ?

Mr. Read. I just indicated that we have.

Mr. Butler. I am always getting the policy from you. I am just

trying to find out how many times you have done it.

Mr. Read. I was trying to indicate to you that there are two particular lawsuits which I am involved in from our office currently pending under the Farm Labor Contractor Registration Act.

Mr. Butler. And since you have been there, have you filed any

suits as attornev for these people under this section ?

Mr. Read. Yes; again, it is a lawsuit against Mr. Portalatin on

behalf of a number of his workers, which is filed in the U.S. District

Court in Puerto Rico.

Mr. Butler. In Puerto Rico?

Mr. Read. Yes, sir; that is where the. workers were recruited.

Mr. Butler. Just for the Legal Services Corporation, do you go

to Puerto Rico and prosecute this, or how does that work out?

Mr. Read. We have cocounsel in Puerto Rico and Puerto Rico

Legal Services.

Mr. Butler. All right.

Thank you.

Mrs. Collins. Mr. Maguire?

Mr. Maguire. Thank you, Madam Chairwoman.

Gentlemen. I thank vou for your testimony.

I wonder if we could talk a little about sanctions. You have made

the point in your testimony that the emphasis is on registration and

there is a lack of emphasis on sanctions, and this creates a situation in
69

which very little actually ends up being done about the violations

that occur.

We also have specific cases like the Portalatin case which just cry 

out for some kind of remedial action. To read your account, Mr. Read,

of what I would refer to as an atmosphere of terror as a principal

operating factor: threats, acts of violence, and so on. And then we have

a situation in which, years later, that is still going on, on the one

hand; and then, on the other hand, we have all these figures you have

given us about the number of actions taken by DOL and the number

of times that fines have actually been set. And, of course, the schedule

of fines itself shows us that, once again, there is a tremendous gap

between what has been the intent of Congress in enacting this legislation and what is actually occurring in the field.

Let us talk a little more about this issue. Mr. Ebbott, you refer, on

page 9, to the civil money schedule, involving a $100 fine for failing to

disclose to workers, for example, which would be cut to $50 if you

could not prove willfulness.

What kind of schedule would you think would make sense? Right

now, there is a $1,000 maximum for the most serious violations. What

range of penalties would be more appropriate ?

Mr. Ebbott. At the minimum what should happen with this schedule

is that each of these amounts should be doubled, and the 50-percent

reduction provision should be stricken. Even then, such a penalty does

not make a very substantial dent in the farm labor contractor’s income.

In addition, that should be assessed per worker. The cost of abuse has

to be made approximately equal to the gain that is now made from

the abuse.

Mr. Maguire. Yes. If you are doing a strict cost/benefit analysis, 

I think the point Mr. Carr made earlier, or makes in his testimony, is

extremely important. If it costs you a lot less to defy the law for any

fair standard of behavior, if you are unscrupulous, or if you are not

but are prepared to wink at what somebody else may be doing that

you benefit from, there is a tremendous incentive to do it that way.

Moving on to the question of the oral nature of many of these discussions between those who are hiring farm labor and farm laborers

themselves, how does one deal effective with the fact that a lot of

the transactions are conducted thus ?

You have, for instance, had to trace Mr. Portalatin back to Puerto

Rico, and I gather the DOL in Puerto Rico was not even willing to

help you with that.

What does this suggest ought to be the situation in the law ? How

do we get closest to dealing with the problem of being able to find

out what was and was not said and hold people accountable?

Mr. Ebbott. There are two approaches to take: The carrot and the

stick. One is to conduct an education program, which the Department

of Labor says it has been doing with farm labor contractors, to say,

“Here is what you do; you use our form;” and you develop a much

better form that the Department of Labor has developed. It does not

allow for much disclosure at all in the form itself. You make those

available.

But that is really not going to be effective until you start detering; investigating thoroughly enough to see whether the contractors

have been disclosing; coordinating between area office and area office
70

to see when that has been repeated; and investigating to determine

whether there has been a willful violation so that you can impose

serious criminal penalties.

The first step is the Department of Labor’s. That would be to put

much more emphasis on disclosure as a serious violation rather than a

technical violation. The civil money penalty schedule indicates that it

is now considered a rather minor violation.

Mr. Maguire. What about doubling it?

Mr. Ebbott. That one, I think, should go up to $1,000, but I made

a rough recommendation across the board. But the nondisclosure, I

think, is critical.

The other thing that can happen in terms of private enforcement is

that if more and more farm labor contractors are sued for nondisclosure to a great number of workers, the fact that they cannot produce

the written disclosure statement may mean there will be enough of a

judgment against that farm labor contractor that there will be a deterrent. But there has to be a two-pronged deterrent action, one by the Department of Labor and one by us, I guess, in recovering substantial

judgments for violations.

Mr. Maguire. What is the significance of the fact that only 4.8 percent of the compliance actions were followup investigations?

Mr. Ebbott. It seems to me, especially when you are enforcing a law

such as this in an area where the activity takes place, substantially

interstate although often intrastate, if you have a Texas area office

and a Wisconsin area office both involved with the same crew leaders,

if there is a violation discovered by the Wisconsin area office, that information should be transmitted to the Texas area office with an admonition, “Check this farm labor contractor to see what happens

either this year or at the beginning of the recruiting season next year.”

That is the way that the repeated and the willful record is going to be

built so that more serious sanctions can be imposed.

But the significance of this to me, as nearly as I can read the Department of Labor data, is that there is very, very little of that going

on.

Mr. Maguire. You cite an OSHA regulation on page 10 of your

statement on which the compliance officers of OSHA stood with fieldglasses on the far side of a stand of trees when they were supposed to

be looking at the shed and the tents where people were living.

What could possibly explain that kind of behavior?

Mr. Ebbott. I have to make a correction. The “and OSHA” was not deleted, and it should have been. It should read, “The wage and hour

compliance officers,” not OSHA.

Mr. Maguire.All right. The wage and hour officers.

Mr. Ebbott. I have no idea why they stood with binoculars in the

field rather than going on to the premises where the workers were,

especially since you cannot see through trees.

Mr. Maguire. What would be a plausible explanation for that

behavior ?

Mr. Ebbott.I cannot explain it.

Mr. Maguire. You say, on page 9, “We cannot stress enough that

these repeat and serious violaters are not limited to the traditional

crewleaders but include corporations, associations and their full-time

or regular employees who recruit on more than an incidental basis.”
71

My question goes to the subject matter that I discussed with Mr.

Ellsworth earlier in the hearing and the question of whether the word

“personally” should be taken out of the law, which would have the

effect of exempting corporations and people who work for corporations but, nevertheless, are in the business of hiring migrant labor.

You also said at the beginning of your comments that you wanted 

to deal with the 99 percent/1 percent problem. I am not sure that you

have yet dealt with that in any overall way. I do know that in the

attachments, the examples from Texas and Illinois in particular do

involve corporations and the violations that are committed by employees of those corporations in hiring migrant labor.

How do we get more of a handle on this question of, if you will,

the distribution of exploitive activities as between those engaged by

corporations to hire labor and others ?

Mr. Ebbott. One of the problems right now is that no one has taken

a measurement of that. The reason I challenge the 1percent/99 percent

was that that was used as a premise, and I do not think anyone has

measured that. What we have presented here is documentation that

indicates the existence of a pattern and practice. Nobody has measured

that.

One thing that could be done to get a handle on that aspect is to have

someone, whether it is us or another governmental agency, make an

analysis of how much of this is done. But right now what we can do

is definitely not exempt corporate entities and their fulltime or what

they will call “regular” employees from the coverage of the act. There

is absolutely no indication at all that so little abuse of this statute goes

on that agribusiness is entitled to an exemption.

Mr. Maguire. Of course, one of the curious things about this exemption is that, ordinarily, we are being asked to exempt the little guy

from this or that or another law or set of regulations. It looks as if

that has been turned on its head now, and we are being asked to exempt

the biggest guy.

Mr. Ebbott. That is the irony of the position that the agribusiness

spokesmen have taken today. The small farmer is always used, at

least in my experience, by large corporations to gain exemption or

relief from the statute. I think the construction of the word “personally” that the Department of Labor has applied makes sense in that

regard. There is some indication that, for whatever reason, the small

farm was intended to be exempt from this statute. One of the reasons

may be that he has less chance to abuse a great many farmworkers or

that he has less capability to deal with the registration and requirementssuch as that in the statute.

With corporations, neither of those are true. Corporations deal with

many more farmworkers; there is the potential for much more widespread abuse of farmworkers; and they have the resources—the accountants, the auditors, the personnel managers—who deal all the time

with reculatory statutes such asthis.

Mr. Maguire. Have you looked at the question of how easy it would

be for people hiring farm labor to convert to some sort of corporate

status if the law were to be rewritten to exclude corporations? Is it

easy or difficult ?
72

Mr. Ebbott. It is easy. People do it all the time, of course, for tax

purposes. What would be especially easy would be to call your independent contractor a “regular employee” and insulate both the corporation and the people who recruit for it. That is the easiest tiling in

the world.

Now, there is some use of contractors. People who are called foremen or fieldmen are called contractors in an attempt to insulate the

growers. If there is a loophole—an exemption—available for the corporation, there would be no problem to call a “contractor” a “foreman” or a “fieldman” or a “regular employee.”

Mr. Maguire. That would assume, though, that you had an employer

who was willing to do that.

Mr. Ebbott. The incentive for that is, if you do not deal with a covered contractor under the statute, you as an employer are not liable

for engaging the services of an unregistered farm labor contractor

and you are not liable for failing to obtain the records that that contractor must keep. So, there is an incentive for the change in the

nomenclature.

Mr. Maguire.If you had the exemption.

Mr. Ebbott. Right.

Mr. Maguire. So, that might create a situation where it would appear to be in the interests of both the itinerant farm labor contractor

and the ultimate employer to arrange their affairs so that they would

be exempted, and all of their activities would be exempted from the law.

Mr. Ebbott. The fact that they would do that is demonstrated by

the Portalatin affair where, in an investigation by the Department of

Labor, the corporate employer said, “This is my regular employee,

not a crewleader.”

Mr. Maguire. I wanted to ask about that. Portalatin apparently

worked out a relationship like that with one of his employers in New

Jersey, but what would have been the utility of doing that under the

law as it now stands, which does not permit this exemption of corporate employees ?

Mr. Read. The law now reads, “activities done personally,” and 

then as to the employees, “on a no more than incidental basis.” There

is still the argument at least that the corporation is not acting personally. It provides a gray area in which someone can argue, “Well, I

was not willfully violating the law because I was relying on this gray

area.” That is one of the problems with carving out the exemption; it

creates people who would clearly be exempt. Now, “on a no more than

incidental basis” should make it clear that people such as Portalatin

should still be covered.

Mr. Maguire. Even under existing law, there was a legal angle

that Portalatin might have been able to exploit, together with the

company to which he was related, on the grounds that he would have

been acting personally.

Mr. Read. I would note that the Leonard Farms Corp., has now registered as a farm labor contractor, and Mr- Portalatin, after he was

allegedly fired by the company, went to register as a farm labor contractor employee of the corporation.

Mr. Maguire. You would also, would you not, if you had two classes

of entities under the law, one that would be covered and one that
73

would not, presumably, encourage people to misrepresent the facts?

You cite a Michigan case in your addendum, Mr. Ebbott, where that

has already occurred under existing law, and the compliance officer

apparently accepted it at face value. Is that correct? Can you tell us

more about that ?

Mr. E bbott. That is correct.

I can easily see an example in Illinois where the canning corporation

refers out workers to other growers between crops. Now they advertise

that the workers are available, and they actively facilitate that. Once

that exemption is available, you can see where they would just take

a passive stance and would not advertise any more and would not

spread the word around actively. The workers would be in there in

the housing, and the rejoinder if you said that they were farm labor

contracting would be, “We don’t know what goes on between the

workers and the growers; the growers may come in contact with them

and hire them a way; they are just residing in our housing until the

next crop.”

You can see how easy it would be to obfuscate what was really going

on if the exemption was there.

Mr. Maguire. Thank you.

Madam Chairwoman, I am sorry Mr. Ellsworth and Mr. Shaw are

not still available to us here because I would like to ask them------

Mi'S. Collins. I believe they are still here.

Mr. Maguire. Well, perhaps we could just direct a question to them

to be answered in writing with respect to the question of the likelihood

of conversion of itinerant farm labor contractors to some sort of corporate status, or that of the danger of misrepresentation as a result of

some of the suggestions they have made with regard to policy this

morning and elsewhere.

Mrs. Collins. Without objection, their response will be included in

the record at this point.

[The material follows:]
74

NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS

237 SOUTHERN BUILDING • 15th and H STREETS, N.W.

WASHINGTON, D. C. 20005 (202) 628-8650

January 16, 1980

Mrs. Cardiss Collins, Chairwoman

Subcommittee on Manpower and Housing

Committee on Government Operations

B-3^9A Rayburn House Office Building

Washington, D.C. 20515

On November 13, 1979, Mrs. Collins,

your Subcommittee held hearings regarding the enforcement of farm

labor laws by the U.S. Department of Labor. During that hearing, and

subsequent to my appearance as a witness, Congressman Maguire, referring to me, Mr. Myers and Mr. Shaw, as witnesses said:

"Well, perhaps we could just direct a question to them, to be

answered in writing, with respect to the question of the likelihood of conversion of itinerant f a m labor contractors to

some sort of corporate status, or that of the danger of misrepresentation as a result of some of the suggestions they

have made with regard to policy this morning and elsewhere."

This letter responds to that request.

In response to the question of whether an itinerant f a m labor contractor could avoid or evade compliance with the law by assuming corporate status, i.e., by becoming incorporated, the answer is clearly

"No" because since the f a m labor contractor is neither a "nonprofit

charitable organization" within the meaning of 3(b)(1) nor a "farmer,

processor, canner, ginner, packing shed operator or nurseryman" within the meaning of 3(b)(2), he would not be eligible for either of these

exemptions.

The second question asked was whether, by removal of "on no more than

an incidental basis" from Section 3(b) (3) of the P a m Labor Contractor

Registration Act, an itinerant fann labor contractor (crew leader)

could become a full-time or regular employee of a famer, processor,

canner, ginner, packing shed operator or nurseryman and, by so doing

evade or avoid compliance with the law.

Agricultural employers have sought deletion of the words "on no more

than an incidental basis" from Section 3(b) (3) of the P a m Labor Contractor Registration Act because the interpretation of the phrase and

enforcement by the Department of Labor has resulted in forcing employees
75

who are already full-time or regular employees to register as faim labor

contractors even though they spend a minimal amount of their time in

farm labor contracting activities and are by no stretch of the imagination crew leaders. We have repeatedly stated that we favor requiring

itinerant farm labor contractors (crew leaders) to register under the

Act.

Our desire to delete "on no more than an incidental basis" does not

arise from a desire to convert itinerant faim labor contractors (crew

leaders) to some sort of corporate status. Our desire to delete "on

no more than an incidental basis" is based on the Department’s forcing

those who are already corporate employees to register. Field foremen

or other agricultural employees already hired, have had to register

because they expend as little as one hour per day (and often less)

transporting workers on the farm or in the grove or orchard.

The teim "incidental" has been interpreted as "accidental" by the Department.

Let us assume, for the sake of argument only, that an itinerant fawn

labor contractor were hired each year by an agricultural employer as

a regular seasonal employee to perfrom the function of field foreman.

At that time he would cease to be a farm labor contractor. He would

have no crew of his own. He would be a direct employee of the employer. The workers he would supervise would be the direct employees of

the employer, hired by the employer. An employee is an agent of the

employer when he acts within the course and scope of his employment.

The corporate employer by making this individual a "full-time or regular employee" assumes full responsibliliy for his acts and actions

and for any violations of the law the employee may commit. The corporate employer has a fixed situs. It is amenable to legal process and

subject to law enforcement procedures under both federal and state law. 

The corporate employer also, be it a farmer, processor, packer, or

whatever, presumably has assets and is financially responsible. It

would certainly appear that under these circumstances the agricultural

employee has far greater protection against abuses or exploitation than

he would have if he were required to look to an itinerant farm labor

contractor, whether that faim labor contractor was registered or not. 

Merely requiring the farm labor contractor to be registered and hold

a certificate under the Act affords this employee little, if any, protection, if that farm labor contractor is here today and gone tomorrow,

and if he is financially irresponsible and has no fixed situs, and if

he is not amenable to legal process.

In the assumed situation the employer would be responsible for housing,

if any. The employer would be responsible for fair and accurate pay

and payroll records. The employer would be responsible for obeying the

Federal law and his State laws. The net result would be the eli n r i n a -

tion of the crew leader as such, and that is not at all bad.
76

Possibly the question being raised is this: Can the Act be avoided or

evaded by an employer by making the itinerant farm labor contractor a

full-time or regular employee? The answer is obviously "No" for the

reasons indicated above. By making the contractor a full-time or regular employee the employer assumes full responsibility for his acts, 

actions and derelictions. By seeking the 3(b)(3) exclusion the employer

assumes full responsibility for the actions of the crew foreman, whereas

if the crew foreman were an independent contractor the employer wbuld

incur no responsibility other than to see that the contractor was properly licensed. Thus the elimination of the language, "on no more than

an incidental basis", does not in any way diminish the protection that

the agricultural employee has under the law, but rather it increases

that protection to the extent that the employer assumes responsibility

for the actions of the crew leader.

Employers, however, are not seeking opportunity to pursue that course

of action. Employers seek only to have their full-time or ragnlan employees out from under the onerous requirements that come with being

forced to register as f a m labor contractors (fingerprinting, reporting

their earnings to other workers, carrying insurance equal to that required

of interstate common carriers and the like).

We appreciate the opportunity to provide this information for the record.

Sincerely,

Perry R. Ellsworth

Executive Vice President

PREzta
77

Mr. Maguire. Thank you, Madam Chairwoman.

Mrs. Collins. Thank you.

I have no further questions. Thank you very much.

Mr. Ebbott. Thank you.

[The prepared statements of Messrs. Ebbott, Carr, and Read, 

follow:]

68-61+3 0 - 80 - 6
78

Testimony

of

, John F, Ebbott

Migrant Legal Action Program, Inc.

George Carr

Legal Aid Bureau of Maryland

Arthur Read

Camden Regional Legal Services

Before the Committee on

Governmental Operations

Subcommittee on Manpower and Housing

United States House of Representatives

November 13, 1979

I. Introduction

My name is John F. Ebbott. I am the Litigation

Director of the Migrant Legal Action Program, located here in

Washington. With me this morning are Attorney George Carr,

with the Legal Aid Bureau of Maryland office in Salisbury,

Maryland, and Attorney Arthur Read, with the Camden Regional

Legal Services office in Vineland, New Jersey. We thank the

MEMBERS OF THE SUBCOMMITTEE AND THE SUBCOMMITTEE STAFF FOR

GIVING US THE OPPORTUNITY TO TESTIFY THIS MORNING ON ISSUES

OF SUCH IMPORTANCE TO OUR FARMWORKER CLIENTS.

Mr . Carr, Mr . Read and I are all legal services

ATTORNEYS WHO REPRESENT MIGRANT FARMWORKERS ON A VARIETY OF
79

ISSUES, INCLUDING CLAIMS UNDER THE FARM LABOR CONTRACTOR REGISTRATION Act, Some of our clients travel from state to state

TO FIND WORK. OTHERS ARE RECRUITED THROUGH THE DAYHAUL SYSTEM,

Most work on a seasonal basis. All are exploited in the recruitment process, Our total migrant clientele numbers approximately 1.5 million, When seasonals are added, our total

CLIENTELE NUMBERS APPROXIMATELY 5 MILLION, (SEE LlLLESAND,

Kravitz and McClelland, "An Estimate of-the Number of Migrant

and Seasonal Farmworkers in the United States and the Commonwealth of Puerto Rico", Legal Services Corporation, May 1977).

My program, the Migrant Legal Action Program, is a

NATIONAL SUPPORT CENTER WHICH PROVIDES TECHNICAL ASSISTANCE

TO FARMWORKER ATTORNEYS AND PARALEGALS AROUND THE COUNTRY.

Farmworker attorneys are in the field every day,

TALKING WITH MIGRANT FARMWORKERS, INVESTIGATING ALLEGED ABUSES,

NEGOTIATING WITH GROWERS AND PROCESSORS, AND FILING ADMINISTRATIVE COMPLAINTS AND LAWSUITS WHERE APPROPRIATE. In THE COURSE

OF THIS WORK WE HAVE COLLECTIVELY ACCUMULATED A GREAT QUANTITY

OF EXPERIENCE WITH THE LABOR RECRUITMENT PRACTICES OF AGRIBUSINESS AND WITH THE DEPARTMENT OF LABOR'S ENFORCEMENT OF THE FARM

Labor Contractor Registration Act. It is this experience which

WE WOULD LIKE TO SHARE WITH THE SUBCOMMITTEE TODAY.

We bring no overwhelming power or special interest

GROUP INFLUENCE TO BEAR ON THESE ISSUES, FOR FARMWORKERS HAVE NO

SUCH POWER OR INFLUENCE. We BRING ONLY THE FACTS AS WE KNOW

THEM AND REASONED ARGUMENTS IN SUPPORT OF OUR CLIENTS' INTERESTS.

And, we are quite willing to test these arguments in an open

HEARING SUCH AS THIS.
III. C.urr£hi-.Recruitinq Abuses

Mr . Chairman and members of the Subcommittee, many

OF THE ABUSES WHICH THE FARM LABOR CONTRACTOR REGISTRATION ACT

WAS ENACTED TO REMEDY STILL OCCUR TODAY, AND ONE OF THE MAJOR

REASONS FOR THIS IS THE TERRIBLY INADEQUATE ENFORCEMENT OF THE

Act by the United States Department of labor CDOL). These abuses

ARE PERPETRATED NOT ONLY BY INDIVIDUAL LABOR CONTRACTORS, BUT

INCREASINGLY BY CORPORATE ENTITIES. A NUMBER OF SPECIFIC

EXAMPLES OF THESE RECRUITMENT ABUSES ARE DETAILED IN OUR WRITTEN

TESTIMONY (SEE ATTACHED EXHIBIT A ) J FROM THEM A GENERAL PATTERN

CAN BE ABSTRACTED:

Farmworkers are routinely not told by recruiters what

THEY WILL BE GETTING INTO IF THEY ACCEPT THE JOB OFFER. THIS IS

DONE BY BOTH CORPORATE AND INDIVIDUAL RECRUITERS, If FARMWORKERS

ARE TOLD, JOB CONDITIONS ARE COMMONLY MISREPRESENTED TO THEM.

They are told they will make a lot of money, live in good housing,

AND HAVE PLENTY OF WORK. THIS TOO IS DONE BY CORPORATIONS AS .

WELL AS BY INDIVIDUALS.

When they arrive at the job site, often 1 ,0 0 0 miles

OR MORE AWAY FROM HOME, THEY FIND THAT THERE IS NO WORK. Or

THAT THEY WILL BE PAID LESS THAN PROMISED, OR NOT PAID AT ALL.

Or that housing is filthy and dangerous. Or that they are transported IN UNSAFE VEHICLES.

Farmworkers frequently find that they must buy food,

CIGARETTES AND OTHER ITEMS FROM THE CREWLEADER OR THE CORPORATION'S

CAFETERIA. OFTEN THE PRICE OF THESE ITEMS IS HUGELY INFLATED.

They are soon in debt, and the purchases are deducted from their
81

PAY> LEAVING THEM LITTLE OR NO MONEY, If THEY TRY TO LEAVE THE

JOB, IT IS NOT UNCOMMON FOR THE LABOR CONTRACTOR, OR "FOREMAN",

TO BEAT THEM UP, OR THREATEN TO KILL THEM. At BEST, THEY LEAVE

THE JOB WITH NO EARNINGS WHATSOEVER, AND MUST MAKE THEIR OWN

WAY HOME,

IV, POL Ineffectiveness in Enforcement

All of this is inflicted on powerless people who perform SOME OF THE MOST DIFFICULT, BACK-BREAKING AND TEDIOUS LABOR

IN THIS NATION.

This is the reason the Farm Labor Contractor Registration

Act was enacted, This is the reason the Department of Labor

WAS GIVEN THE RESPONSIBILITY AND THE DUTY OF ENFORCING THE ACT.

And this is the reason the DOL has been given steadily increasing RESOURCES AND WEAPONS WITH WHICH TO ENFORCE THE ACT. It IS

THE MISSION, THE DUTY OF THE SECRETARY OF LABOR AND HIS COLLEAGUES

TO PROTECT THESE POWERLESS AND PRODUCTIVE LABORERS. YET THEY

HAVE NOT DONE SO. THE ABUSES CONTINUE, WHY? HOW?

We do not know why. But we have an idea as to how

DOL has failed in its duty:

1. Registbauqn vs. Sanctions

DOL has overemphasized registration and neglected

THOROUGH INVESTIGATION AND THE IMPOSITION OF REAL SANCTIONS ON

SERIOUS VIOLATORS.

If there is one area where we agree with agribusiness, AND THERE IS ONLY ONE AREA OF AGREEMENT ON THIS ISSUE,

IT IS THAT DOL HAS TOO FREQUENTLY ATTEMPTED TO REGISTER PERSONS
IN THE GRAY AREA OF FLCRA COVERAGE. DOL'S STATISTICS YEAR

AFTER YEAR SHOW GREAT LEAPS IN REGISTRATION NUMBERS,, LITTLE

PROGRESS IN CIVIL MONEY PENALTIES COLLECTED OR CRIMINAL PROSECUTIONS, The DOL enforcement strategy seems to be to register ABSOLUTELY EVERYONE FIRST, THEN TO CONSIDER REVOKING

LICENSES AND PROSECUTING CRIMINALLY,

2. Nq.,Followup

The FLCRA sanctions system is geared to serious

AND REPEAT VIOLATORS, THUS, TO IMPOSE HEAVY SANCTIONS WHICH

WILL ACT AS A REAL DETERRENT TO ABUSE, DOL MUST DETERMINE

THAT A FARM LABOR CONTRACTOR HAS WILLFULLY AND KNOWINGLY VIOLATED the Act or that this is a subsequent violation. 7 U .S .C .

Sec. 20A8(a), Obviously previous violations are relevant to

BOTH DETERMINATIONS,

And, under the present civil money penalty (CMP)

SCHEME, THE ALREADY SMALL CMP AMOUNTS ARE REDUCED 50% IF THE

VIOLATION IS ", . . FOR OTHER THAN AGGRAVATED, WILLFUL OR RECURRING." (See attached Exhibit B ) . Again, prior violations

ARE RELEVANT TO ASSESSMENT OF A 100% CMP.

One of the best ways to ascertain whether a farm

LABOR CONTRACTOR, CORPORATE OR INDIVIDUAL, REPEATEDLY VIOLATES

the Act is to do followup investigations. If she violates in

Wisconsin, follow her to Texas to see whether she does it again,

Yet DOL statistics show that of 5 ,7 0 8 "compliance actions" conducted BETWEEN 9 /2 1 /7 8 AND 9 /2 0 /7 9 , ONLY 276 WERE FOLLOWUP INVESTIGATIONS. This is 0.8% . (See attached Exhibit C ).
83

3 . Under utilization of Available Resources

For years the DOL has told us that it was doing

THE BEST IT COULD, THAT IT HAD TO ENFORCE TOO MANY STATUTES

WITH TOO FEW PEOPLE. YET THIS LAST YEAR THE RESPONSIBILITY

FOR ENFORCING THE AGE DISCRIM INATION IN EMPLOYMENT ACT (A D E A )

and the Equal Pay Act (E P A ) was transferred out of D O L , and

DOL RECEIVED FUNDING FOR 5 8 WORKYEARS OF FLOR A ENFORCEMENT.

This was an increase of 2 7 over the approximately 3 1 workyears

AVAILABLE TO DO L FOR FY 1 9 7 8 .

Nevertheless, according to DOL sta t is t ic s , DOL used

ONLY 3 1 . 8 6 WORKYEARS IN FLO R A ENFORCEMENT BETWEEN 9 / 2 1 / 7 8 AND

9 / 2 0 / 7 9 . (See attached Ex h ib it C ) (Th is calculation is based

ON A WORKYEAR OF 2 0 8 0 HOURS, WITH DOL REPORTING AN EXPENDITURE

of 6 6 2 6 7 compliance hours. 6 6 2 6 7 t 2 0 8 0 = 3 1 . 8 6 . ) Thus it

USED NO MORE RESOURCES THAN IT DID THE PRIOR YEAR, ALTHOUGH 2 7

MORE WORKYEARS WERE AVAILABLE TO IT . WHY?

Those resources which are used are used in e f f ic ie n t l y .

For example, in one of the portions of the Field Operations

Handbook which DOL had disclosed to us, the witnessing of

statements by more than one clearance officer is encouraged.

FOH Sec. 58e01(d). (See attached Ex h ib it D ) . Th is adds nothing

AND WASTES RESOURCES. THE SAME IS TRUE IN SEC. 58e31, WHICH

GOVERNS THE DOCUMENTING OF A GROWER/USER' S IN A B IL IT Y TO PRODUCE PAYROLL RECORDS. (SEE ATTACHED E X H IB IT E ) .

Another example of wasted resources, FOH Sec. 58A17(b)

SUGGESTS THAT IT MAY BE APPROPRIATE FOR THE COMPLIANCE OFFICER

TO TAKE AN UNREGISTERED FARM LABOR CONTRACTOR TO THE NEAREST
8 4

State Employment Service office to apply for registration.

If the farm labor contractor agrees to register, the compliance OFFICER IS TO RECONTACT HIM OR THE LOCAL ES OFFICE

TO DETERMINE IF HE HAS APPLIED. (SEE ATTACHED EXHIBIT E ) .

Given the limited amount of travel money and compliance officer TIME, THIS IS A GREAT WASTE OF RESOURCES. ONE WOULD

THINK THE UNREGISTERED FARM LABOR CONTRACTOR COULD TAKE HIMSELF TO THE ES OFFICE, THEN BRING THE APPLICATION FORM TO THE

COMPLIANCE OFFICER'S OFFICE TO PROVE HE HAS REGISTERED. THIS

IS NOT ONLY AN EXAMPLE OF RESOURCE WASTE BUT OF DOL'S UNDUE

EMPHASIS ON REGISTRATION AND THE LENGTHS TO WHICH IT WILL GO

TO ASSIST A VIOLATING FARM LABOR CONTRACTOR TO REGISTER.

A. Lack of Resources

Even were DOL to use its available resources

FULLY AND EFFICIENTLY, 58 WORKYEARS IS WOEFULLY INADEQUATE TO

ENSURE FULL ENFORCEMENT OF THE ACT AND ELIMINATION OF CONTRACTOR ABUSE OF FARMWORKERS. DOL SHOULD BE BUDGETED FOR AT LEAST

100 WORKYEARS, AND SHOULD USE THEM FULLY.

V. Enforcement, of FLORA Corrects Abuse

Where DOL has enforced the Act, or where farmworkers

HAVE SUED UNDER THE ACT, THE CONTRACTOR HAS FREQUENTLY REFORMED

HIS RECRUITMENT PRACTICES OR CEASED RECRUITMENT.

For example, in 1977 in Minnesota one of the most

FLAGRANT ABUSERS WAS THE AMERICAN CRYSTAL LABOR COMPANY, WHICH

RECRUITED WORKERS FOR SUGARBEETS THROUGH THE AXELSON LABOR COMPANY.
85

American Crystal Sugar Company,, the parent of American

Crystal Labor Co ., was owned cooperatively by sugar beet farmers

AND PROCESSED THE BEETS FOR THOSE FARMERS. AMERICAN CRYSTAL

Labor Co . referred workers to the farmers for work in the sugarbeets. Among the complaints by about 30 workers against American Crystal Labor Co . was that there was no work on arrival

AND THAT THE WORK, HOUSING AND WAGES WERE NOT AS PROMISED AT

RECRUITMENT.

After receipt of the workers' complaints, DOL determined that American Crystal Labor was covered by FLCRA and that

THERE HAD BEEN VIOLATIONS OF THAT ACT. As A RESULT, IN 1978

American Crystal Labor ceased recruiting and the beet farmers

BEGAN RECRUITING WORKERS DIRECTLY FOR THEMSELVES. THIS HAS

MEANT FEWER MISREPRESENTATIONS AND BROKEN PROMISES TO WORKERS.

DOL'S ENFORCEMENT ENDED A VERY SEVERE PROBLEM OF BROKEN PROMISES

AND FALSE EXPECTATIONS, AND DEMONSTRATES THE POSITIVE IMPACT

FLCRA CAN HAVE.

Private enforcement of FLCRA is also effective. At

MINIMUM, A FARMWORKER WHO PREVAILS IN A FLCRA LAWSUIT IS COMPENSATED FOR THE ABUSE HE HAS SUFFERED, WHETHER OR NOT THE FARM

LABOR CONTRACTOR REFORMS HIS PRACTICES OR CEASES RECRUITMENT.

V I. The Remedy:_ _ DOL Should Enforce Against Repeat and Serious

Violators, Use Its Resources to the Fullest and Fine-Tune

Its Enforcement Mechanism,

A . Repeat and Serious Violators

First of all, DOL should refocus its resources away

FROM REGISTERING ALL MANNER OF PERSONS AND ENTITIES AND TOWARD
86

THE IMPOSITION OF SERIOUS SANCTIONS ON REPEAT AND SERIOUS

VIOLATORS.

We cannot stress enough that these repeat and

SERIOUS VIOLATORS ARE NOT LIMITED TO THE TRADITIONAL "CREW"

LEADERS" BUT INCLUDE CORPORATIONS, ASSOCIATIONS AND THEIR

FULLTIME OR REGULAR EMPLOYEES WHO RECRUIT ON MORE THAN AN

INCIDENTAL BASIS.

B. Heavy Sanctions

Second, heavy sanctions should be imposed. The

CIVIL MONEY SCHEDULE IS A JOKE — A $100 FINE FOR FAILING TO

DISCLOSE TO WORKERS, CUT TO $50 IF OTHER THAN AGGRAVATED,

WILLFUL OR RECURRING. THE CMP AMOUNTS SHOULD BE GREATLY INCREASED. And, those that are assessed should be collected;

few are. Criminal prosecutions should be much more frequently

USED, AND JAIL TERMS VIGOROUSLY SOUGHT. THIS MEANS DOL WILL

HAVE TO WORK ON THE DEPARTMENT OF JUSTICE, BUT THAT IS DOL'S

JOB.

Certificates of registration should be much more

READILY REVOKED, OR NOT ISSUED. THE NUMBER OF REVOCATIONS AND

NONISSUANCES IN 1979 WAS PATHETIC — 79.

C. Coordination

Thirdly, coordination between states and regions

SHOULD BE MUCH BETTER. THE NUMBER OF FOLLOWUP INVESTIGATIONS

SHOULD BE GREATLY INCREASED. PROBABLY THE DOL NATIONAL OFFICE

SHOULD NOT BE USED AS A CENTRAL CLEARINGHOUSE. DIRECT COMMUNICATION between Area Office and Area Office should greatly increase.
87

D. Thorough Investigation

Fourth, investigations should be much more thorough.

Workers should be talked to, not just the farm labor contractor

AND THE USER. CONSIDERATION SHOULD BE GIVEN TO PEONAGE AND

OTHER HUMAN RIGHTS VIOLATIONS AS AN INDICATION OF A WILLFUL

AND KNOWING VIOLATION OF FLCRA WHICH WILL TRIGGER A FINE AND

PRISON TERMS.

An example of this lack of thoroughness: DOL

COMPLIANCE OFFICERS INVESTIGATED A FLCRA COMPLAINT IN FLORIDA

IN 1977 WHICH ALLEGED THAT 20 PEOPLE, INCLUDING CHILDREN, WERE

LIVING IN A WOODEN SHACK, TWO TENTS, AN OPEN-AIR SHED AND

ASSORTED TRUCKS ON THE PREMISES OF A CORPORATE PACKING HOUSE.

They had run out of drinking water, had only two portable

TOILETS AND NO HANDWASHING FACILITIES. THE WAGE AND HOUR AND

OSHA COMPLIANCE OFFICERS DID NOT VISIT THE SHED BUT STOOD IN

A FIELD WEST OF THE SHED. BETWEEN THEM AND THE FARMWORKERS AT

THE SHED WAS A STAND OF TREES. THE DOL PEOPLE REPORTED THAT,

EVEN WITH THEIR FIELD GLASSES, THEY COULD NOT SEE ANYONE IN

THE PACKING SHED.

This is the kind of "investigation" that must improve.

It is the kind of investigation that results in DOL's finding

THAT, OUT OF 5708 COMPLIANCE ACTIONS:

a . There has been misrepresentation to workers in

ONLY 25;

b . There has been nondisclosure to workers in only

887;
c. There has been a failure to keep records, or

INACCURATE AND INCOMPLETE RECORDKEEPING, IN

ONLY 243;

d . There have been improper money payments to

WORKERS IN ONLY 32;

e . There have been housing safety and health violations IN ONLY 158;

f . Agreements with workers have been broken in

ONLY 24; AND

g . Users have failed to keep payroll records, or

HAVE MAINTAINED INACCURATE AND INCOMPLETE RECORDS, IN ONLY 61.

(See attached Exhibit 6)

In our experience, all of these violations occur

MUCH MORE FREQUENTLY THAN THIS; THEY ARE ROUTINE.

E. FLCRA Specialists and Task Forces

Fifth, DOL should train FLCRA specialists, and pay

THEM MORE BECAUSE OF THE DIFFICULT NATURE OF FLCRA WORK. THE

PORTIONS OF THE FIELD OPERATIONS HANDBOOK WHICH WE HAVE SEEN

ARE COMPLETELY SILENT AS TO HOW TO CONDUCT A FARMWORKER INVESTIGATION, AS OPPOSED TO AN URBAN WORKER INVESTIGATION.

Bilingual investigators should be hired.

Task forces should be assembled in every area with a

SUBSTANTIAL FARMWORKER POPULATION, AND THEY SHOULD OPERATE INTENSIVELY DURING THE GROWING AND HARVEST SEASONS. DOL SHOULD

FORM A NATIONAL FLCRA TASK FORCE TO COORDINATE THIS ACTIVITY.
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F . Speed in Investigation

Sixth./ DOL FLCRA investigations are notoriously slow.

Even if the compliance officer comes out right away, often the

INVESTIGATION IS NOT CONCLUDED FOR SIX MONTHS OR A YEAR. By

THIS TIME ANOTHER RECRUITING SEASON HAS PASSED, SANCTIONS HAVE

NOT BEEN APPLIED, AND MORE ABUSE HAS OCCURRED. THE FARM LABOR

CONTRACTOR GETS A FREE RIDE FOR YET ANOTHER YEAR.

There are many other recommendations which we have

REPEATEDLY MADE TO DO L, AND HAVE BEEN ASSURED THAT THEY WOULD

BE CONSIDERED. YET IT APPEARS TO US THAT FEW HAVE BEEN ADOPTED.

We have seen some signs of improvement. In some areas,

such as Pennsylvania and Florida, enforcement has increased.

The Assistant Secretary for Employment Standards has personally

MET WITH SEVERAL MIGRANT LEGAL SERVICES ATTORNEYS TO DISCUSS

BETTER ENFORCEMENT. ONE ASSISTANT REGIONAL ADMINISTRATOR, IN

Chicago, met with us on FLC R A enforcement. This is encouraging,

BUT IT DOES NOT REPLACE A SERIOUS SANCTIONS PROGRAM OR THOROUGH

INVESTIGATIONS. AND, IT BELIES THE DRASTIC UNDERUTILIZATION

OF RESOURCES BY DOL THIS PAST YEAR.

On the whole, we believe that adequate enforcement

IS POSSIBLE TO ACHIEVE WITH ONLY A FEW ADDITIONAL RESOURCES

AND A CHANGE IN EMPHASIS BY DO Lj WITH IT WILL COME A MARKED

IMPROVEMENT IN THE LIVING AND WORKING CONDITIONS OF MIGRANT

FARMWORKERS.

V I I . The Attempted Evisceration of F LCRA

The supreme irony is that although F LC R A enforcement

HAS FALLEN FAR SHORT OF THE MARK SINCE 1 9 7 4 , THERE IS NOW A
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MOVEMENT AFOOT TO SEVERELY RESTRICT THE JURISDICTION OF THE

Act, to turn the clock back to 1963,

We are aware, and we are certain that the members

of this Subcommittee are aware, of a very strong attempt by

THE AGRIBUSINESS LOBBY TO CUT THE HEART OUT OF FLCRA, TO

EVISCERATE IT. MAJOR AGRIBUSINESS CORPORATIONS ARE RIGHT NOW

ENGAGED IN FEVERISH EFFORTS TO EXEMPT CORPORATIONS WHO RECRUIT

FOR THEIR "OWN OPERATIONS" AND THEIR FULLTIME OR REGULAR EMPLOYEES FROM ANY LIABILITY UNDER THE ACT, FROM ANY EFFECTIVE

RECRUITING RESPONSIBILITY TO FARMWORKERS,

This hue and cry by agribusiness about governmental

OVERREGULATION IS AN EXAGGERATED RESPONSE, ESPECIALLY WHEN ONE

CONSIDERS THAT DOL HAS A PALTRY 58 WORKYEARS OF COMPLIANCE

TIME FOR FLCRA ENFORCEMENT, AND THAT DOL HAS USED ONLY 3 1 ,9

OF THOSE WORKYEARS, THE FACT IS THAT AGRIBUSINESS SIMPLY DOES

NOT WANT TO BE REGULATED IN ANY RESPECT.

The result of the deletion of "personally" from

Sec. 2002(b)(2) and "on no more than an incidental basis"

from Sec. 2002(b)(3 ) would be to provide a wide escape hatch

FOR CORPORATIONS WHO DO SUCH THINGS AS MAKE FALSE PROMISES TO

THE WORKERS THEY RECRUIT AND PROVIDE THEM WITH WOEFULLY SUBSTANDARD HOUSING. The result would also be to have such noble

INDIVIDUAL FARM LABOR CONTRACTORS AS MARCOS PoRTALATIN CLASSIFIED AS "REGULAR" EMPLOYEES BY THEIR EMPLOYER CORPORATIONS;

THEY COULD THUS CLAIM AN EXEMPTION, As SHOWN IN THE ATTACHED

MATERIAL, PoRTALATIN's CORPORATE EMPLOYER HAS ALREADY CLAIMED

HIM AS A "REGULAR" EMPLOYEE. SUCH CHANGES IN NOMENCLATURE AND
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METHODS OF OPERATION IN ORDER TO CLAIM AN EXEMPTION FROM A

REGULATORY STATUTE ARE COMMON IN THE MODERN WORLD OF AGRICULTURE.

Nor does the existence of state laws make FLCRA

COVERAGE OF CORPORATIONS AND THEIR EMPLOYEES UNNECESSARY.

State courts are frequently hostile environs, especially in

AGRICULTURAL AREAS WHERE FARMWORKERS WOULD HAVE TO FILE SUITS

UNDER STATE STATUTES. (SEE ATTACHED EXHIBIT H .) In ADDITION,

STATE FRAUD AND CONTRACT CLAIMS BASED ON ORAL NEGOTIATIONS

WILL BE ALMOST IMPOSSIBLE TO PROVE, ESPECIALLY WHEN THE CREDIBILITY OF AN OUT-OF-STATE SPANISH-SPEAKING MIGRANT IS MATCHED

AGAINST A SMOOTH-TALKING, RESPECTED BUSINESSMAN PERSONNEL MANAGER.

The agribusiness lobby has kept its efforts quiet;

IT DOES not want a full and fair discussion of these issues,

It intends to pressure the Congress to attach a "Midnight

RIDER" — A NONGERMANE RIDER TO AN AGRICULTURAL BILL AT THE

CLOSE OF THE SESSION. THE BILL WOULD COME PROBABLY FROM THE

Senate Agricultural Committee and go to conference with the

House Agricultural Committee, both Committees being more sympathetic to the interests of agribusiness than to agricultural

LABORERS. THIS A DEVIOUS STRATEGY.

Agribusiness is afraid to have its amendments see the

LIGHT OF day; IT DOES NOT WANT ITS IDEAS EXPOSED TO FULL AND

FAIR DEBATE. THIS IS BECAUSE THE CORPORATIONS AND THEIR LABOR

CONTRACTORS HAVE SOMETHING TO HIDE — THEIR EXPLOITIVE RECRUITMENT PRACTICES AND THEIR INTENT TO CONTINUE THEM.
Attached to our written testimony as Exhibit A is

BUT A PARTIAL LIST OF DOCUMENTED RECRUITMENT ABUSES. I URGE

the Subcommittee to review these incidents in the course of

its deliberations on FLORA enforcement by DOL.

I WOULD NOW LIKE TO YIELD TO ATTORNEY GEORGE CARR.

Thank you for your kind attention.
93

EXHIBIT A: RECRUITMENT PRACTICES AND DOL ENFORCEMENT ACTIONS

BY STATE

New Jersey

• Marcos Portalatin;

This farm labor contractor assaulted a legal services attorney 

Arthur Read, and slashed him across the face and stomach with

a knife. He has now been charged with assault with intent to

kill, atrocious assault and assault with a deadly weapon.

Prior to this, Portalatin induced 16-20 year old boys to come

from Puerto Rico to New Jersey through false promises of good

money, good housing, good food and good working conditions.

Upon arrival, these boys were required to work 7 days a week,

from 5 a.ra. to 5 p.m., at a breakneck pace with few rest periods. When one of the boys in the first crew to arrive complained of feeling ill and being unable to work fast enough,

he was severely beaten in front of the other workers.

The workers were subjected to constant threats about what

would happen to them if they attempted to leave the labor camp

or did not work hard enough. They were not permitted to leave

the labor camp to purchase food or other necessities. They

were required to purchase all these things through Portalatin

at greatly inflated prices.

As a result, these youths received as little as a penny in pay

for more than 80 hours' work per week.

When DOL first began a compliance action against Marcos

Portalatin, in May 1979, the corporation which employed him

maintained that he was a "regular" employer who should be

exempt from registration under and compliance with the Farm

Labor Contractor Registration Act.

North Carolina

• In 1979 a farm labor contractor who operates in Florida and

North Carolina brought migrant workers from Florida to North

Carolina. When he recruited these workers, he and his assistant told them that the North Carolina camps had central air

conditioning and heat, which they did not. He also told the

workers that they would earn $2.90 per hour; he did not disclose the piece rate which he would pay. His assistant told

the workers that they would earn $5 per hour, and that they

were guaranteed $200 per week. The workers were told that

they would work 5% to 6 days each week.

At recruitment, the contractor and his assistant gave the

workers no written disclosure of the terms and conditions of

68-643 0 - 8 0 - 7
94

employment. Nor did they make any disclosure, written or

oral, as to where in North Carolina the workers would be

taken. The workers were also not informed when work would

begin or what the contractor would charge for food and alcohol. They were not told that, because the workplace was located so far from town, they would have to buy food and

alcohol from the farm labor contractor.

Upon arrival the workers found that there was little work 

available, that they had been brough up in advance of the

start of the season and there was nothing to do. During the

first week, they did not work in the fields at all. One

worker worked around the camp area for 15 hours, but was

not paid for that work.

During the Second week the migrants worked three days.

During the third week they worked Tuesday and Wednesday

only, and were not paid by the contractor for that week.

During this time of little work the migrants had to eat

and they drank some whiskey and smoked cigarettes. This

food, drink and tobacco had to be purchased from the farm

labor contractor, as they had no alternative source. The

contractor sold his commodities at greatly inflated prices.

He also charged a rental fee for sheets and blankets. It

is illegal in North Carolina to sell alcohol in this fashion.

Because the migrant were not working much, they were paid little, and had to go into debt to the contractor. Their 

purchases were deducted from their pay when they did earn 

something. As a result, although they had been guaranteed

$200 per week, the most case any of the five plaintiffs now

suing the contractor ever saw was $10.

During one of the infrequent times the workers were able to

apply for and obtain food stamps the farm labor contractor

confiscated the stamps and purchased food, charging the

workers $30 per week for that food.

The workers never saw any pay records or an itemization of

deductions.

When three of the workers attempted to leave the camps, the

contractor tracked them down, put them in his truck, took

them back to the camp and slapped them around. He told them

that if they tried to leave while they owed him money they

would be killed and buried in a field. The contractor also

held a group meeting or workers, at which he stated that if

anyone tried to leave while in debt to him, that person would

be killed.

On May 2, 1979, attorney William Geimer of Legal Services

of North Carolina took two of these workers to the DOL Wage

and Hour Office in Raleigh, alleging violations of the Farm

Labor Contractor Registration Act by the farm labor contractor.
95

These violations included failure to make written disclosure

of wages and working conditions, and transportation in uninsured vehicles. Mr. Geimer also provided DOL with a 1978

affidavit that the contractor had beaten a worker in the ribs

with a metal bar after accusing the worker of not properly

cropping tobacco. Minor civil money penalties had been assessed against the contractor in 1977.

To the best of Mr. Geimer's knowledge, DOL took no action

against the farm labor contractor during the entire 1977

season. The contractor had been registered by the Department

of Labor on January 1, 1979, with transportation authorized. 

DOL Public Registry shows that as of August, 1979, his license had not been revoked.

North Carolina/Pennsylvania

’ In 1978 a farm labor contractor from Belle Glade, Florida,

recruited 30 workers in Miami, Florida to work in North

Carolina, but he made no written disclosure to them as to

what the wages and working conditions were to be.

The contractor transported these 30 workers from Miami to

Faison, North Carolina in a U-Haul van with the door bolted.

He stopped once each hour so that the workers could get air

and relieve themselves.

When they arrived in North Carolina, the contractor failed

to pay the workers the minimum wage for their labor. They

were paid $30-40 per week for 30-40 hours of work. They 

were given no pay stubs and shown no records of hours of pay.

And, the housing was substandard.

In North Carolina the workers kept asking when the farm labor

contractor would take them back to Miami. Finally, he told

them "tomorrow" and loaded them on a bus. He then headed

north to Pennsylvania, to Millville. There he told the workers that they had to pick tomatoes before he would take them

to Miami.

They were placed in a camp with approximately 30 other people

There were only 2 shower stalls for the 60 residents. The

rooms were overcrowded. Each worker paid $5 per week for

this housing.

The workers also paid $50 per week for the following cuisine:

Breakfast - Grits

Lunch - Hot dog

► Dinner - Pig's ears and rice

Complaints were filed with DOL in 1978 by approximately 10 of

these workers. In 1979 this farm labor contractor was twice
96

granted certificates of registration by DOL, one for 0

workers, one for 65 workers. The certificate issued February 12, 1979 did not authorize transportation and housing.

The certificate issued on March 7 authorized transportation

and housing. The contractor's license has still not been 

revoked.

. In 1979 two farm labor contractors recruited a migrant

farmworker, Alan Whitehead, in Philadelphia, Pa. They told

his he would have work and would earn $50 per day. They did

not give him written disclosure of the wages and working

conditions.

They then transported Whitehead, along with three other workers, to the Wilke-Barre-Scranton area, where the workers

at first found no work available in tomatoes or cucumbers.

When he finally did work, Whitehead was paid nothing for

apporximately two weeks' work.

Whitehead quit, went to DOL and filed a complaint containing

allegations of violations of FLORA and FLSA by the farm labor

contractors. DOL inspected and found minimum wage violations.

DOL informed Whitehead that he was owed $150 but that it would

not collect the money for him. DOL never investigated the

FLORA violations at all.

These farm labor contractors were issued certificates of

registration by DOL in 1979, the last on July 5, 1979. The

July certificate granted one of them the permission to

house workers which had been denied him on January 24. These

contractors still have their licenses; none have been revoked.

Texas

In 1978 a corporate cotton gin in Lubbock, Texas recruited

migrant workers from South Texas through a cotton ginners 

association. The workers travelled 500 miles to Lubbock

relying on promises of 84 hours of work per week, safe and 

decent housing to be provided by the gin, and reimbursement

for their transportation expenses. When they arrived, however, they did not receive any work at all initially. After

several complaints, they received a guarantee of 36 hours 

per week which also was not honored by the gin. Moreover, 

contrary to the recruitment promise, they had to pay rent

for their housing and their one room barrack was grossly

substandard, lacking a working toilet among other violations

of federal and state minimum habitability standards. The

workers never received the promised travel expenses.

In 1977 a group of migrant agricultural workers from South

Texas were recruited to work for a large corporate cotton 

gin in Goodland, Texas. Through its contractor/employee,
97

the gin solicited the workers with promises of a paid minimum of 40 hours per week for several months, and housing

to be provided by the gin. After travelling 800 miles to

accept the promised employment, they were .given approximately

half the work they were promised, they were required to

transfer to a gin in a location different from the location 

they were recruited for, and they were put in housing which

lacked heat and cooking facilities. Neither the gin nor its

employee/contractor were registered under the FLCRA.

• In the summer of 1979 a large multi-national vegetable packer

in Hereford, Texas recruited South Texas migrant workers

through one of their full time managers. Induced by the field

, manager's promises of 40 hours work per week for 5 weeks, and

decent housing to be provided by the .shed, the workers travelled 800 miles to Hereford. When they arrived, they found

that the shed had over-recruited with the result that they

got only one week's work for a total of approximately 30

, hours. The housing in which they were placed was plagued

by no toilet facilities, hazardous wiring (some barracks 

were without any electricity at all) and a broken sewer pipe 

that poured raw sewerage into an open pool on the ground adjacent to the barracks. Conditions were so hazardous that a

city housing inspector untimately condemned the barracks and

ordered the workers out, forcing them to find housing on their 

own. Since the workers not only received a fraction of the

promised work but also substantially lower wages than promised, they eventually returned to their homes having suffered

a net loss. Both the corporate packing shed and their field

manager are registered farm labor contractors but neither is

authorized to provide housing.

• In 1979 Texas Rural Legal Assistance complained to DOL about 

the recruiting practices of a large vegetable growing and

packing corporation. DOL found that one of the corporation's 

"contractors", who worked for that corporation on a seasonal 

but regular basis, had failed to make written disclosure of

wages and working conditions to the workers. He had also

compiled incomplete and inaccurate records, and had failed

to record the production of children.

A file obtained by Texas Rural Legal Aid through the Freedom

of Information Act shows that a Wage and Hour compliance officer explained the FLCRA violations to the contractor, who

said he understood them. On August 28, 1979, the file was 

closed, with a letter to the contractor notifying him that

no further action was contemplated at this time; "however,

further violations could result in the imposition of civil

*. money penalties or other civil actions." This was the second

such warning letter to that contractor. The first had been

issued in July. The August 28 letter covered violations

occurring subsequent to the July warning letter, yet no sanctions were imposed.
98

• In 1979 the DOL Area Director told an attorney for Texas

Rural Legal Aid that this same corporation would be required

to register because it had engaged in recruiting workers in

early 1979.

DOL in 1977 cited a "field man" employed by this corporation

for FLORA violations. Although this man recruited for the

corporation on more than an incidental basis, DOL failed to

cite the corporation.

The DOL cited this corporation for minimum wage violations

in 1977. Moreover, that same corporation has in late 1978

or early 1979 paid an $1800 assessment for overtime violations.

In 1979, it paid approximately $300 in minimum wage violations

regarding field workers. The corporation is thus a known

violator of the Fair Labor Standards Act.

DOL has not disclosed its FLORA actions against the corporation to Texas Rural Legal Aid, who represents the complainants, on the ground that to do so would interfere with DOL's

law enforcement proceedings.

• A "contractor" for that same corporation maintained incomplete records on the corporation's workers, records which

contained no addresses and social security numbers for many

crewmembers.

The contractor also failed to make written disclosure to his

workers at recruitment. And, he gave only one pay receipt to

an entire family, rather than one to each worker in a family 

as required by FLCRA.

When DOL first investigated this farm labor contractor the

compliance officer found him exempt because he recruited

within 25 miles and less than 13 weeks. When a third party

later told the compliance officer that the contractor worked

as a crewleader in Uvalde, Texas as well as the McAllen area,

an addendum was added to the file noting his coverage.

The compliance officer then cited the contractor for the incomplete records, but missed the nondisclosure and pay receipt violations. On July 14, 1979 the compliance officer

wrote the contractor a warning letter informing him that the

file would be closed and that no further action was contemplated. 

Indiana

' Naas Foods, Inc, and Edmundo Sosa:

In 1978 Naas Foods, Inc., a cannery, recruited Texas workers

through Edmundo Sosa of Naples, Florida and Brownsville, Texas.

Naas sent a letter to Sosa, which Naas claims was shown to the
99

w o r k e r s . The w o rk e r s w ere n e v e r g iv e n a c om p le te w r itt e n

d i s c l o s u r e s t a t e m e n t. The l e t t e r s t a t e d t h a t Naas needed

165 women and 160 men to work in P o r tla n d and G eneva, In d ia n a .

A c c o rd in g t o th e l e t t e r , w o rk e r s w e re t o r e c e i v e a minimum

$2 .65 p e r h o u r , f r e e h o u s in g , and th e s e a s o n was t o b e g in

betw een A u g u s t 1 and 10 , and c o n tin u e t o be tw een O c to b e r 1

and O c to b e r 1 5 . Job d u r a tio n was s u b j e c t to change due t o

w e a th e r c o n d iti o n s . T r a n s p o r t a tio n was t o be a r ra n g e d by

Naas from T ex a s t o In d ia n a and th e c o s t d e d u c te d from th e

w o r k e r s ' w a g e s . These d e d u c tio n s w ould in tu rn be r e fu n d e d

i f th e em p lo ye e s s t a y e d u n t i l th e s e a so n was c o n s id e r e d c lo s e d .

Naas and S osa b ro u gh t th e w o rk e r s t o In d ia n a s e v e r a l w eeks

b e f o r e s t e a d y w ork was a v a i l a b l e . S in c e th e w o rk e r s d id n o t

h a v e t h e i r own t r a n s p o r t a tio n , th e y had t o e a t a t th e comp a n y 's c a f e t e r i a on c r e d it . When th e m ig ra n t s b egan w o rk in g

s t e a d i l y , th e c o s t o f m eals and t r a n s p o r t a tio n was d ed u c ted

from t h e i r i n i t i a l p a y c h e c k s , w h ich b ro u g h t t h e i r pay be low

minimum w a ge .

DOL was n o t if i e d and p e r fo rm ed an FLSA c o m p lian c e a c tio n

w h ich r e s u lt e d in a fin d in g th a t FLSA minimum wage had been

v i o l a t e d due t o e x c e s s i v e d e d u c tio n s . O th e r FLSA v i o l a t i o n s

w e re a l s o fou n d , in c lu d in g n o n d i s c lo s u r e o f r e a so n s f o r d e ­

d u c tio n s .

As a r e s u lt , some o f th e w o rk e r s w e re r e fu n d e d th e t r a n s ­

p o r t a tio n d e d u c tio n , b u t DOL has n o t o b ta in e d liq u id a t e d

damages f o r them . Nor h a s i t ta k e n any a c tio n on th e FLCRA

v i o l a t i o n s , as n e a r ly a s th e L e g a l S e r v i c e s O r g a n iz a tio n o f

In d ia n a can d i s c e r n . Such d is c e rn m en t i s d i f f i c u l t b e c a u s e

DOL r e f u s e s t o sh a r e in fo r m a tio n abou t t h i s c a s e w ith th e

L e g a l S e r v i c e s O r g a n iz a tio n o f In d ia n a .

A p p ro x im a te ly 17 w o rk e r s hav e su ed Naas F o o d s , In c . und er

FLCRA and FLSA in th e c a s e o f T o r r e b la n c a v . Naas F o o d s , In c ,

and Edmundo S o s a , C iv . No. F -78 -0 16 3 ( N .D .In d ., F t. Wayne

D i v .) ( F i l e d D ecem ber, 1 9 7 8 ).

S u b seq u en t t o t h i s e p i s o d e , in v o l v in g as i t d id n o n d i s c lo s u r e ,

m i s r e p r e s e n t a tio n and b r e a ch o f p rom ise t o th e w o r k e r s , and

su b s e q u en t t o th e f i l i n g o f th e l a w s u it, Edmundo S o s a was

a g a in r e g i s t e r e d b y DOL on J an u a ry 1 , 19 7 9 .

• Wage and Hour in I n d ia n a :

I t i s th e p e r c e p tio n o f th e s t a f f o f th e L e g a l S e r v i c e s O rgani z a ti o n o f I n d ia n a , I n c . , t h a t Wage and Hour does n o t do much

FLCRA e n fo r c em en t in t h e i r a r e a . LSO s t a f f n e v e r en c o u n te r e d

c o m p lian c e o f f i c e r s ou t on t h e i r own in 19 7 9 . A tto rn e y Thomas

Ruge e n c o u n te r e d one on ce — a t th e im m ig ra tio n o f f i c e in th e

S p r in g o f 19 7 9 .
100

Attorney Ruge has called Wage and Hour people, and they 

have put him off. This is in spite of repeated efforts and

invitations by Attorney Ruge to establish an effective working relationship.

Wage and Hour also take a long time to investigate a case,

which does not work with farmworkers. Wage and Hour had 

told Ruge, "Yeah, we'll get to it." By the time they do,

the season is over.

Illinois

* Canning Companies — Current Practices

Illinois has several large canning corporations who recruit

for themselves and, between crops, allow their migrant workforce to be used by other growers.

It is a practice of. these companies to promise migrants work

by a certain date for instance mid-April. The workers arrive

in mid-April to find that work will not start until mid-May.

The delay is ordinarily two weeks to a month.

The workers have, preparatory to their trip to the cannery,

withdrawn their children from Texas schools and closed up

their homes in Texas.

The lack of employment necessitates that the workers apply

for public assistance, with its concomitant drain on the

public treasury.

These canneries always promise that the housing is in satisfactory condition, and it seldom is, Among the common housing

conditions are: Standing sewage; factory drainage running 

through workers' cabins; rats; freight trains running near

the cabins; exposed electric wires causing electric shocks to

residents; fires due to improperly connected gas lines;

plugged toilets causing standing water in the toilet buildings.

In one instance, the Joan of Arc Company provided one water

heater with a capacity of 20 persons for a camp of 100 people.

After this was the subject of a citation ensuing from a federal inspection, the cannery installed 3 new water heaters.

Attorney Tom Hecht of the Illinois Migrant Legal Assistance

Project states that his program is never called by Wage and

Hour compliance officers and that he never encounters those

compliance officers in the field.

Michigan

• The major problem with FLCRA enforcement in Michigan as of

1977 was that the farm labor contractor and the farmer would
101

tell the compliance officer that the contractor was a "foreman". The compliance officer accepted that version and did

not consider the contractor covered by the Act.

New York

’ In 1978, a grower's attorney drew up a contract and handed it

out upon the workers' arrival at the camp, rather than at

recruitment. When Western New York Rural Legal Services complained to DOL, the compliance officer stated that this was

only a minor violation, that anything under a $100 civil money 

penalty was "not worth it".

Idaho

• As of 1978, while one local compliance officer was very cooperative and helpful to farmworkers, he was overworked and

thus could not actively enforce FLCRA. This compliance officer had no secretary and had many other statutes to enforce.

This was at a time when dozens of contractors were being used

by growers and no contractor or grower was complying with

FLCRA.
102

c / is /HcmS'.'

U.S. DEPARTMENT O F ^ BOR

EMPLOYMENT STANDARDS ADMINISTRATION

WAGE AND HOUR DIVISION

FARM LABOr C .V IL MONEY PENALTY REPORT

Name Registration Number

Farm Labor Contractor Employee

□ Farm Labor Contractor O of

Permanent Address Investigation Site

Compliance Officer(s) Date

FLC/FLCE VIOLATIONS PENALTY

ENTER AMOUNT

IF APPLICABLE

1. Failure to register:

a. Certificate 4 (a )............................... S1000’

b. 10 Card 4 ( b ) ............................................... 500*

2. Failure to exhibit certificate 6 (a ).......................................... 50

3. Disclosure to workers 6 ( b ) ................................................................................. 100

4. Posting at work site 6(c) ................................................................................... 50

5. Misrepresentation to workers 5 (b )(2 ).............................................................. 400

6. Failure to keep required records 6(e) .............................................................. 400

7. Record keeping incomplete or inaccurate 6 ( e ) ............................................... 200

8. FLC records furnished to user 6 (e )................................................. 100

9. Statement of amounts contractor received provided to worker 6 ( e ) ...........

10. Illegal alien workers (total may exceed $1000) 6 ( f) .......................................

100

400 ea

11. Proper money payments 6(g) ............................ 200

12. Worker purchases 6 ( h )......................................... 200

13. Transporting w ithout certificate authorization 5 (a )(4 ).................................. 400

14. Operating vehicle used to transport workers 5(b)(8) .................................... 200

15. Vehicle safety 5(b)(8) & 5(b)( 12) ..................... 400

16. Vehicle insurance 5(b)(5) & 5(a)(2) . . 1000

17. Notification to Secretary of vehicle change 5(d) .

18. Housing workers w ithout certificate authorization 5(a)(4) ..........................

19. Housing safety and Health (up to $1000) 5(b)( 12)

50

400

1000

20. Posted housing conditions 6(d) . .

21. Notification to Secretary o f housing change 5(d)

22. Knowingly made misrepresentations or false statements in

application for a certificate or ID card 5(b)(1) . . . .

23. Certificate holder is not the real party in interest and real party

has had certificate or ID card revoked, denied or does not presently

qualify 5(b)( 1 1 )....................................................

24. Failure to abide by agreement with workers 5(b)(4) ................

25. Breach of agreement with user 5(b)(3) ..........................................

50

50

500

1000

400

400

26. Discrimination against workers testifying or exercising rights 13(a) ..........

27. Engaging unregistered FLC (total may exceed $1000) 4 ( c ) ..........................

28. Hiring unregistered FLCE (total may exceed $1000) 5(b)(1 0 ).....................

29. Knowingly employing in any Farm Labor Contractor activity a person

who has taken any action that could disqualify the person from holding

a certificate or ID card (total may exceed $1000) 5 (b )(9 ).............................

TOTAL ASSESSED PENALTY

1000

1000 ea "

300 ea.*

1000 ea.

XXXXXXX $

J f violation is for other than aggravated, w illful or recurring, reduce penalty by 50%.

’ If the FLC or FLCE has made application prior to beginning this investigation, subtract 50%.

(Continued on reverse) Form WH-418

(R.v. Jan. 1978)
103

U.S. D EPA R T M E N T OF LA B O R

EMPLOYMENT STANDARDS ADMINISTRATION

WAGE AND HOUR DIVISION

FARM LABOR CIVIL MONEY PENALTY REPORT

Name R egistration N um ber

Perm anent Address Investigation Site

Com pliance O ffice r(s) Date

G R O W ER , PROCESSOR OR O TH E R USER V IO LA T IO N S P E N A LTY

EN TE R A M O U N T

IF A P P L IC A B LE

30. Engaging unregistered FLC (total may exceed $1000) 4 ( c ) ................................................

31. Failure to keep required payroll records (total may exceed $1000) 14 ..............................

32. Failure to keep complete and accurate payroll records (total may exceed $1000) 14 . .

33. Failure to obtain and maintain contractor records (total may exceed $1000) 14 ............

34. Failure to obtain complete contractor records (total may exceed $1000) 14 ..................

35. Discrimination against workers testifying or exercising rights 13 ( a ) .................................

$ 1 0 0 0 *

each

4 0 0

each

200

each

4 0 0 each

200 each

1000

T O T A L ASSESSED P E N A LT Y xxxxxx s

If v io la tio n is fo r oth e r than aggravated, w illfu l o r recu rring , reduce pe na lty b y 50%.

* l f the FLC o r FLCE has made ap plica tion p rio r to beginning th is investigation, sub tract 50%.

fidi'brb £8 S.
SUPPLIED BY:

BRANCH OF WAGE HOUR STATISTICS

DMICS-OAM-ESA

PAGE 1 OF 2 PAGES

DATE REPORT RUN: 1 0 -3 0 -7 9

u . s . department of labor

employment STANDARDS administration

TABLE 1: REGIONAL SUMMARY OF FLORA COMPLIANCE ACTIONS

PERIOD OF 0 9 -2 1 -7 8 TO 0 9 -2 0 -7 9

DETAILS OF ALL NEW

COMPLIANCE ACTIONS REGIONS BOSTON YORK PHILA

TOTAL compliance actions 5708 93 360 521

COVERED BY ACT 4608 87 249 482

total compliance ACTIONS 5708 93 360 521

f .l . contractors 2899 66 149 205 CONTRACTOR EMPLOYEES 889 2 45 108 USERS 1920 25 166 208

CONCURRENT FLSA ACTION 2S02 6 217 273

ACTIONS FULLY IN COMPLIANCE 2689 6 21 1 189

ACTIONS WITH NON-COMPLIANCE 3019 87 149 332

TYPE OF ASSIGNMENT

STATE EMP SVC COMPLAINTS 163 26 11

OTHER COMPLAINTS 445 19 77 NON-COMPLAINTS 2596 163 278 EUW 2504 93 147 155

type of compliance action

conciliation 30

FULL INVESTIGATION 4952 93 249 492 FOLLOW UP INVESTIGATION 276 25 5 OTHER 450 86 23

COMPLIANCE HOURS EXPENDED 66267 84 1 2852 6530total crew workers 145070 9516 4931 6001TOTAL UNAUTHORIZED ALIENS 2243 19 140

ATLANTA CHICAGO DALLAS

KANSAS

city DENVER

SAN

FRAN SEATTLE

1130 94 9 1323 265 162 718 187

1066 710 1118 68 85 636 107

1130 949 1323 265 162 718 187

591 369 859 189 50 350 7 1 254 96 221 6 28 120 g 285 484 243 70 84 248 107

431 655 546 43 77 187 67

374 716 624 212 97 143 11 7 756 233 699 53 65 575 70

78 29 7 3 3 6 69 34 87 6 13 110 30 521 590 534 122 99 224 60 462 296 695 137 47 381 91

10 1 6 1 6 5 1045 872 1168 264 151 475 143 25 51 105 1 3 34 27 50 25 44 7 203 12

20973 8402 12889 1706 2183 7615 2276

22102 50588 23629 2321 2949 20332 2701

512 46 823 1 96 494 112

o
105

> i.

I R e v . 4 3 1 FIELD OPERATIONS HANDBOOK - 9 / 5 / 7 8 5 8 e 0 1 - 2

« I ’ '

(d) A determination of the number of individuals in the crew should be

made. Signed interview statements witnessed by more than one CO, if 

possible, should be taken from the workers ascertaining whom they believe

to be the Farm Labor Contractor. Interview statements should include

individual's permanent address and other identifying information which

would expedite locating potential witnesses.

(e) In the event a FLC is unable to produce a current certificate of

rraisfration, document the claims of the FLC reoardina reoistration.

' /.w ifbV IT•{■ft? .fa t S i'gi n/w

(f) If the investigation is conducted by two COs, both should be

present and witness any statements made by the FLC, FLCE, and/or user

under investigation. It is desirable but not absolutely necessary that

both COs be present and witness statements made by members of the crew.

The CO should document that the certificate was asked for and that 

another CO on the team observed the request for the certificate.

If the contractor states that "he left the certificate.,back

at the camp," it should be verified.

(g) Full-time or regular employee. In addition to information required

for FLC, document the employment relationship between the FLC and the 

individual under investigation. Document the individual as a "full-time

or regular" employee of .the FLC. . (See 29 CFR 40.2(m) and Section 4(b)

of the Act.) A FLCE who does not possess an I.D. card should be

charged for failure to obtain the I.D. card prior to engaging in Farm

Labor Contractor activities. Documentation of information concerning

FLCE also requires obtaining all information set forth in 58E01(a).

<h) Any person having a FLCE certificate is required to comply with

all provisions of the Act and regulations as if he were a covered

FLC as provided in 29 CFR 40.52.
R ev . 431 FIELD OPERATIONS HANDBOOK - 9 /5 / 7 8 5 8e29 - 5 8e33

58e29 KNOWINGLY EMPLOYING IN ANY FLC ACTIVITY A PERSON WHO HAS

TAKEN ANY ACTION THAT COULD DISQUALIFY THE PERSON FROM

HOLDING A CERTIFICATE OR ID CARD. (Sec. 5(b)(9);

29 CFR 40.51(0), 29 CFR 40.63(j))

I f a FLC knowingly employs any person as an FLCE who could be

disqualified from holding a certificate under Section 5(b) of the Act, a

violation would occur. The disqualifying basis must be documented

(i.e., a FLCE whom the contractor knew had been convicted of murder in

the last year along with substantiation of the FLC's "knowing"

em p lo ym e n t.

58e30 - ENGAGING UNREGISTERED FLC (Sec. 4(c); 29 CFR 40.53(c)

Refer to 58e01 for documentation on an unregistered FLC. When a

FLC is found to be unregistered or operating while his/her certificate

is not in full force and effect (as described in 58e01), an investigation of the user should commence. In addition to the evidentiary

requirements set forth in 58e01, interview statements should be 

taken from the FLC and user to document the contractual arrangement.

V;

58e31 - FAILURE TO KEEP REQUIRED PAYROLL RECORDS (Sec. 14; 29 CFR 40.53(a))

(a) If the grower/user is determined to be the one paying the workers,

he must maintain records required under Federal law (i.e., FLSA, IRS,

SS). ‘ .

(b) C0(s) should request records from the grower/user for review.

Should the grower be unable to produce any records, C0(s) (preferably 2)

should document this information in the file. Statements should be

obtained from the grower and FLC, if possible.

58e32 - FAILURE TO KEEP COMPLETE AND ACCURATE PAYROLL RECORDS

(Sec. 14; 29 CFR 40.53(a))

If the grower/user is determined to be the one paying the workers, he

must maintain complete and accurate payroll records. When C0(s) find

R/K violations during the investigation, transcriptions should

be made to illustrate the type of violation and to provide a method

for computing back wages should they be found due.

58e33 - FAILURE TO OBTAIN AND MAINTAIN CONTRACTOR RECORDS

(Sec% 14; 29 CFR 40.53(b))

(a) If thesis been determined to be the person paying the workers, 

he/she must provide the user (and the user has the responsibility to

obtain and maintain) copies of all records required to be kept and

information required to be provided by the contractor under Section

6(e) of the Act and 29 CFR 40.51(k) and (j) . This includes not only

R/K information but all data concerning amounts received on behalf of
107

Rev. 403 FIELD OPERATIONS HANDBOOK - 6/10/77 58A16 - 58A17

58A16 Case analysis prior to disposition.

When the factfinding phase of the case Is completed the CO must

analyze the situation in light of the following (see FOH 58A06):

(1) What noncompliance has been found and who is responsible?

What are the reasons for the noncompliance? Is this a first

investigation?

(2) What is the most efficient and quickest way to achieve compliance? 

It is WH policy that compliance be achieved immediately. Can

compliance be achieved administratively or is litigation or

other formal enforcement remedies (see FOH 58A10) indicated?

Is it necessary for the CO to make a followup investigation or

should a followup be made by another CO at the contractor’s

next location? If litigation is necessary, which remedy is the

best to use under the circumstances and why?

The CO must make a judgement in light of the answers to the above as

to the best way to proceed. Necessarily some of the above information may be obtained at the final conference. _ ,

58A17 Final conference and disposition. '

a Upon completion of the factfinding phase of an investigation under

FLCRA a conference will be held with the person investigated. As

appropriate the FLC/FLCE or farmer/grower may be present at. the same

conference. In any case the conference will be conducted tfith someone

who can speak with authority and make any necessary change^:

(1) The CO shall point out to the FLC/FLCE and/or farmer/grower

the results of the investigation, where noncompliance was found,

and how compliance can be achieved.

(2) The CO shall ascertain the reasons for any violations and obtain’

an agreement to comply. The CO shall point out to the FLC/FLCE

or farmer/grower the seriousness of the violation^ and the possible consequences of operating in violation and the WH policy

. that compliance should be achieved immediately.

(3) The CO must exercise a practical judgement as to the best way 

of achieving immediate compliance.

b If the FLC/FLCE has failed to register the CO will take whatever

steps are necessary to see that registration is achieved immediately.

In some cases it may be appropriate to take the contractor to the

• " nearest State Employment Service office to apply for’*'registration. :

9
( f .

SUPPLIED BY:

BRANCH OF WAGE HOUR ST A T IS T IC S

DMICS-OAM-ESA

DETAILS OF ALL

COMPLIANCE ACTIONS REGIONS

U .S . DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS A D M INISTRATIO N

TABLE 1 : REGIONAL SUMMARY OF FLCRA COMPLIANCE ACTIONS

PERIOD OF 0 9 - 2 1 - 7 8 TO 0 9 - 2 0 - 7 9

PAGE 2 OF 2 PAGES

DATE REPORT RUN: 1 0 .3 0 - 7 9

BOSTON

NEW

YORK PHILA ATLANTA CHICAGO

KANSAS

DALLAS C ITY DENVER

SAN

FRAN SEATTLE

FLC/FLCE VIO LATIO N S 2 3 1 3

1A NO C E R TIFIC A TE 4 (A ) 7 ) 2

IB NO ID CARD 4 (B ) 48 2

2 F A IL TO EXH C ER TIF 6 (A ) 98 73 DISCLOSE TO WKRS 6 (B ) 8S7

4 POST AT S ITE 6 (C ) 95 6

5 MISREP TO WKRS 5 ( B ) ( 2 ) 25

6 F A IL TO KEEP RECS 6 (E ) 110

7 INACC/INCCM P RECS 6 (E ) 133

8 RECS FURN TO USER 6 (E ) 30 8

9 STMT OF S TO WKR 6 (E ) 8 2 7

10 illegal alien wkrs 6 ( F ) 215

14 PROPER S PAYMENTS 6 (G ) 3212 WORKER PURCHASES 6 (H ) 10

13 UNAUTH TRANSP 5 ( A ) ( 4 ) 561

14 OPER VHCL USED 5 ( B ) ( 8 ) 69 5

15 VHCL SAFETY 5 ( B ) ( 8 / 1 2 ) 30716 VHCL INSUR 5 A ( 2 ) / 8 ( 5 ) 39 6

17 NOT TO SEC VHCL 5 ( 0 ) 8 9

18 UNAUTH HOUSING 5 ( A ) ( 4 ) 224

19 HOUS SFTY/HLTH S ( B ) ( 1 2 ) 158

2 0 POST HOUS CONDS 6 (D ) 18721 NOT TO SEC HOUS 5 ( 0 ) 67

22 FLSE STMTS APPL 5 ( B ) ( 1 ) 3623 BOGUS CERT HDR 5 ( B ) ( 1 1 ) 9

67 12 9 2 3 3 6 0 2 176 60 8 31 5 0 388

5 6 12

2 29

56 28

58 174

4 3 17272 3 1 5

56 4 4 10062 4 2 66

2

2

6

14

10

h 24

w 33

62 S1 116

4 2 03 4

1 2

5 4 . 2 9 62

58 38 76

42 12 7 212 3 9 0 3

68 178 2 3

2 5 5 10 0 177

2 3 3 98 27 8

4 4 5

4 0 7 2242 (, 11 32

69 * 12 * 62

2 6 4 34 183

62 • 6 72

11 1 2

3 2

179 24 143

2 7 6 21 153

18 5 31 95

19 41 149

2 15 54

8 120

15 130

7 5

2 3 186

21 9531 20 0

2 4 6 1062 4 12 n g

1 1 2

1

1

4

11

13

2 6

20

2 66

3 86

10 36

8

29

1

4

3

16

19

2

1

3

3

5

171

25

5

10 11 42

7 9 52

24 BREAK WKR AGREE 5 ( B ) ( 4 ) 2425 BREAK USR AGREE 5 ( B ) ( 3 ) 19

26 DISCR T E S TIF IE R S 1 3 (A ) 5

27 H IR E UNREG F l C 4 (C ) 57

28 H IR E UNRG FLCE 5 ( B ) ( 1 0 ) 34329 H IR E D ISO L FLC 5 ( B ) ( 9 ) 6

USER VIOLATION S

5 24

4

1 10

2

1 . 1

1 4

3 24

70 6 20 2 0

30 H IR E UNREG FLC 4 (C ) 54 6

31 F A IL KEEP PAYROLL RECS 5232 INACC/INCCM P PAY RECS 9

19 14

47 784 5 7736 87

16 16 5

3 13 4

10 13 3

5 4 0 2

1 24

6 2

8 25

3 9 126

2

99 154

79 142

2 5

3 15

10 69

2

57 91

4 9 65

3 4

6 9 12

8 10 20

3 3

12 17

4 5

7 17

4 123 3

3

2 2

1

69

3

3

15 187 41

15 105 39

32

33 F A IL OBTAIN CONTR RECS 190

34 INCOMPLETE CONTR RECS 116

nq m c r o T F 4T T F IFP 4 ,1 (4 1 g

34 4 3 11

2 16 1

2

26

13

2 46 8

78 5

1

11
Senator Xelsox. Wluit about the complaints that I have heard

here todav. and I have heard them before, that the law is good but

the enforcement of the law by the State isn't very good ?

Mr. Reyff. I am going to ask our senior special investigator from

rhe Fresno otlice who deals in law enforcement and who is the man

actually out doing it.

STATEMENT OE SEWARD YOUNG. SENIOR SPECIAL INVESTIGATOR,

FRESNO OFFICE OF STATE LABOR LAW ENFORCEMENT

Mr. Yovxg. Thank you. I am Seward Young, senior special investigator for the Fresno Otlice of State Labor Law Enforcement.

fn the area that I police, which is a six-county area. I am the sole

State officer handling the policing of farm labor contractors.

Senator Xelsox'. How many arc there in this area?

Mr. Yovxg. Approximately 320.

Senator Xelsox. You are the sole State official supervising the

about 300 contractors in the area ?

Mr. Yovxg. That is correct.

Senator Xelsox. Proceed.

Mr. Yovxg. Of course these aren't my only duties. I also police

the fields insofar as health and sanitation, child labor, workmen's

compensation, and other laws that the State division of labor law

enforces.

Last year I made 4S0 inspections of various fields. This wouldn't

only entail contractors, but it would also be farms where there is no

contractor involved.

Senator Xelsox. You made -ISO inspections of areas where workers

were, employed, in other words.

Mr. Yovxg. That is correct. I don't have any record of the number

of warnings that I issued, but I did make 27 arrests for various violations that I found in the fields during that period of time. Most of

my arrests are made by the citation process, in other words, the

same as a traffic officer who gives you a ticket when he finds your

speeding. The only problem T do have insofaV as the enforcement of

the law is concerned is that I don’t get too good of a response from

the courts in the final prosecution of the case. My fines are very 

small. In one instance T found 200 children in a field-----

Senator Xelsox. T wo bundled underage?

Mr. Yovxg. Yes.

Senator Xeusox. In violation of the law. in one field?

Mr. Yovxg. Tn one field. One citation was issued because it covered

the entire field. There were two separate instances of this type.

Senator Xelsox. The same employer?

Mr. Yovxg. No. One was a contractor and one was a farmer. Tn

one case the case was dismissed because the judge didn't feel that

child labor in the fields was a bad thing, and in the other case I

obtained a $35 fine.

That’s one of the problems we have in the enforcement of the

laws. My feeling is almost that it is better not to make an arrest

but rather to give a warning due to the fact we don't get too good

of cooperation from rhe courts, especially in these farm areas.

[* Senator .Xelsox. These are all State courts?

Mr. Yovxg. Yes. these are all State courts. They are actually

county courts, municipal courts, justice courts, courts of this type.
I Senator Xelsox. What vou need are some law and order judges,

k I think.

) Mr. Yovxg. Possibly so. sir.

5 Senator Xelsox. Who follow the law.

I Mr. Yovxg. But when you are faced with a situation in an agri-

/ cultural county. I don't know, thd judges just don't seem too much

C interested in the enforcement of this type of law.

Senator Xelsox. Well. 200 underage in one field would seem a

little gross. If it were two. it might be another matter.

Mr. Yovxg. Mr. Xelson. during the harvest season there are far

more than that working, let me assume you.

Senator Xelsox. For one grower?

Mr. Yovxg. Xo. not for one grower, not one particular grower.

In this area during the harvest season I have about 115.000 farmworkers that I police.

Senator Xelsox. That isn't physically possible.

Mr. Yovxg. It isn't physically possible to get around to all of

these spots, no. ’

Senator Xelsox. If you did -ISO is J. year, if you even counted

Sundays, you would be doing substantially better than one a day.

one and a third inspections a day counting Saturdays and Sundays.

Mr. Yovxg. I keep busy.

Senator Xelsox. You must violate the speed limit getting around.

Mr. Yovxg. The area that I cover is composed of some 17.000

square miles. I think a reporter one time compared my area, when

it was a little bit larger, to the area actually about the size of Xew

York, the State of Xew York, that is.

Senator Xelsox. It sounds to me-----

Mr. Yovxg. It is a manpower problem with us at the moment.

Hopefully it will be rectified.

Senator Xelsox. From the duties you have, it sounds more likelv

that they will double your duties more likely than double the staff.

M r. Reyff. Senator, he is retiring.

If I may. I would like to make one or two observations about the

complaints. You heard testimony from two workers who had difficulty 

collecting their wages. One of the workers did receive his pay. The

other said he didn't receive his pay by taking action through our

office because, as I determined it. lack of evidence. But we do accept

wage claims from workers against farm labor contractors and w«_

/‘'proceed very quickly against the contractors. The gn.QOfLhond th a t'

I is required by California law is a wage protection bond that was

I placed because historically there were occurrences of contractors,

\skipping with payrolls. * J

If a contractor leaves the area or does not pav a worker and the

worker has a valid claim, we can proceed against that bond and

collecr his wages.

[The biographical sketch of Mr. Young follows:]

BlOGKACrnCAI. SKETCH

Reward Yonns. Senior Sjx’Cia! Investipator with the Fresno Office, State Division of Labor I.aw Enforcement since 1054.

Prior to this, his law enforcement career commenced in 1010 as a V. S. Border

Patrol Inspector. Subsequently lie was an Immisrution Inspector: Immisration Investiitator: Senior Deputy Sheriff. Fresno County Sheriff's Office: Special
I ll

TESTIMONY

OP

GEORGE E. CARR

LEGAL AID BUREAU C'P MARYLAND

SUBCOMITTEE ON MANPOWER AND HOUSING

UNITED STATES HOUSE OP REPRESENTATIVES

NOVEMBER 15, 1979

I. Introduction

My name is George Carr. I am the Chief Attorney of the Salisbury 

office of the Legal Aid Bureau of Maryland. The Salisbury office

is responsible for the delivery of legal services to migrant workers

in Maryland in Delaware. I would like to join with Mr. Ebbott and

Mr. Read in thanking this subcommittee for this opportunity to make

a few remarks.

I have been working with migrant workers for the past four years.

I began working in the Immokalee office of Florida Rural Legal Services in June, 1975. Prom there, I moved to Wauchula, Florida 

where I worked for another two years. Last January, I moved to

Salisbury, Maryland.

II. POL Ineffectiveness in Enforcing FLORA

Mr. Chairman, I sincerely hope that the representatives of

agribusiness and the Department of Labor which the subcommittee will

hear today will not complain of undue regulatory pressure being 

placed upon small, family growers. This analysis must fail for 

two reasons. For one thing, we are now in the age of agribusiness. 

Complex and sophisticated business practices involving tremendous

accumulations of wealth are becoming the norm in American agriculture.

For example, in Florida, there are many groves owned by absentee
112

which are maintained by citrus maintenance corporations, are harvested 

by citrus harvesting companies (which may, in turn, subcontract their

harvesting work to smaller citrus harvesting companies), and are subject to fruit agreements requiring delivery of harvested fruit to

citrus processing plants owned by combinations of other corporations.

In Florida's vegetable industry, a major international corporation,

A. Duda and Sons, Inc., dominates a substantial portion of all of

Florida's produce markets. With land holdings capable of staggering „

the imagination in different continents, its position of prominence 

in these produce markets is readily understood.

The growers are also wrong if tbqr intend to convey the impression *

that DOL has been active in FLORA enforcement. As Mr. Ebbott indicated,

the Department represented in March and April of this year that it

would devote 58 man-years of its compliance officers' time to FLORA

enforcement. In fact, the Department only utilized 51.9 man-years 

of enforcement time. The results achieved during these 51.9 man-years

have been less than impressive. Nation-wide, the Department encountered 

only twenty-five cases where farm labor contractors misrepresented

the terms and conditions of prospective employment at the time of

recruitment and only twenty-foir instances of farm labor contractors 

failing to abide by the terms and conditions of their employment agreements with their workers. I would be glad to take this committee

on a tour of the labor camps on the Delmarva Peninsula during the

next growing season. I believe that we could locate more than 

twenty-five cases of misrepresentation and more than twenty-four

cases of breach of employment contracts in several days' time.

Interestingly, the Department's data show, that the Baltimore
113

Area Wage and Hour Administration Office,which is charged with

the responsibility for enforcing FLORA in Maryland's Eastern Shore,

did not encounter a single instance of contractor misrepresentation

to farmworkers. Members of the committee, I hope that you will

remember that I reported problems in connection with the operation

of Marcos Portalatin's labor camp near Wyoming, Delaware to the

Baltimore area office in June of this year when Mr. Read relates 

his story about Mr. Portalatin's crew. It is incredible to believe

that any bona fide investigation could have been made at Mr. Portalatin's labor camp without uncovering substantial, life threatening

misrepresentation to workers.

The Department also states that it found only 158 instances of

farm labor housing failing to comply with applicable Federal and

State Health and Safety Standards in 706 investigations. In other 

words, the Department contends that it found housing violations

in less than 25% of the labor camps visited by compliance officers.

The Baltimore area office represents that it found only seventeen 

housing violations in forty-one investigations. Again, I would

like to invite the committee to the Delmarva Peninsula. I am certain

that we would be able to locate more than seventeen violations.

To give the committee a sense of the meaning behind these

statistics, I have brought along photographs of the largest labor

camp in our service area. This is the Westover labor camp located

in Somerset County, Maryland. The camp appears to be operated by

the Somerset Growers, Inc. As you members of the committee 

review these photographs, I hope that you will be able to imagine 

what it must be like to live in these facilities. Can you imagine 

what it must be like to live in the Westover camp and have to work

in the fields for long hours? nan you comprehend how you would
114

react if members of your family contracted dysentery or impetigo

because of the patently unsafe and unhealthy living conditions 

surrounding you? How would you view agents of the United States

Department of Labor who observed you;? living conditions and did

not ask whether you were tricked into coming to Westover? Could

you tolerate the insulting inference that you moved into the camp

knowing what it would be like?

Members of the committee, at the request of the Legal Aid

Bureau, an individual with expertise in the area of institutional 

residential facilities toured the labor camp at Westover. When he

was through, he stated that it was one of the worst living situations 

that he had seen. In fact, he believed that it was worse than any 

prison he had seen. This seemed like an extraordinary claim at

the time it was made because he had testified as an expert in a large

number of cases dealing with jail conditions. However, in retrospect

the claim seems less extraordinary. After all, at one time the

camp served this country as a prison. Originally, many of the

buildings now at Westover were used as a barracks for the Civilian 

Conservation Corps. In World War II, the buildings were used to

house prisoners of war. Now, they house migrants.

Prom my own knowledge and contacts with member? of the farmworker

community, I know that the conditions in Westover have existed for

at least three years. Very reliable persons advise me that Westover

is now worse than it was five years ago. Lists of crew leaders 

believed to be operating in Westover during past years compiled by

migrant service agencies suggest that a vast majority of the crew

leaders working out of Westover were doing so without authorization

to house migrant workers. A check with the public registry of

farm labor contractors compiled bythe Department suggests that
115

the Westover crew leaders operated without housing authorization

and were never subjected to any enforcement activity by the

Department. One crew leader operating in Westover this year

did not have any certificate of registration and managed to remain wholly undetected by the Department's compliance officers.

I hope that the committee will not blindly accept my rendition

of the facts about the Department's FLORA enforcement efforts

in Westover. I hope the committee will encourage the Department to

come forward with records of its enforcement efforts showing that

it has cited the crew leaders and ct hers responsible for the condit tions there and has enforced the law in the manner intended by

Congress.

Members of the committee, it is my belief that the Department

can make no such showing. It is my hope that you can fully appreciate

the tragic consequences of this inaction. Like any normal person,

I hope to inspire my clients with a sense that they can, through

their own individual efforts, overcome the conditions of poverty

which trap them and the members of their families. There is little 

I can say, however, to a family at Westover other than that they

are subjected to conditions which appear to be in gross violation

of the law and that the Department of Labor has failed for many

years to afford them the administrative remedy provided by Congress.

III. Absence of FLORA Sanctions

Commentary on the substantial problems underlying the efforts 

of Wage and Hour compliance officers should not deflect the attention

of this subcommittee from the problems legal services attorneys

have encountered in encouraging the Department to bring the full 

force <f the law against the most serious offenders. On many occasions
during the past several years, I have addressed suggestions to the

highest levels of the Department concerning obvious investigative 

techniques for identifying and gathering evidence against the

most serious violators of the Act. I cannot recall a single instance of favorable response to any of these suggestions or any 

occasion when the suggestions were followed. One suggestion was 

to encourage compliance officers to ascertain whether contractors 

and/or growers were making deposits of social security tax deductions 

in the manner required by the Federal .Insurance Contributors Act.

There has been no Departmental response to this suggestion. I encourage the committee to ask the spokespersons from the Department 

to explain what efforts they have undertaken to monitor payments of

social security taxes.

More significant, the Department has exhibited a curious

reluctance to promote criminal prosecutions of the serious violators of FLORA. To fully comprehend the human consequences of

this problem, it may be appropriate to review the history of crew

leader Wardell Williams. Mr. williams is now a resident of Wauchula,

Florida. He is said to operate one of Florida’s larger vegetable 

and fruit harvesting crews. Like me, he moved to Wauchula after

beginning his career in Immokalee. In 1969, Mr. Williams pleaded 

guilty to the crime of involuntary manslaughter after he had killed 

his wife. In 1974, an information was sworn against him in Wauchula accusing him of sale of alcoholic beverages without a license.

A few week3 later, Mr. Williams estreated the $250 bond which had 

been set for him. In early 1978, Florida Rural Legal Services 

filed a civil law suit against Mr. Williams on behalf of a farmworker whose pay receipts for his period of employment by Mr.
117

Williams tended to show that he never received more than $12.00 

at the conclusion of week-long pay periods. Florida Rural Legal

Services subjected the payroll records produced by Fir. Williams

to a painstaking analysis and summarized their findings on a

voluminous series of charts. As a i*esult of this analysis and 

other discovery activities conducted as a necessary element of the

civil litigation, it was concluded that proper law enforcement 

officials should be notified of possible violations of the criminal provisions of FLORA and other criminal statutes. Meanwhile, 

in March and April of 1979, officials at the highest levels of the

Department represented that enforcement efforts directed toward

serious and repeat violators of FLORA would become a Departmental

priority. Accordingly, on May 50, 1979, the highest levels of the

Department were provided with all the payroll charts and other

information compiled by Florida Rural Legal Services concerning

Mr. Williams' activities. An offer was made to afford any additional cooperation that was needed and a request was made that the

Department keep Florida Rural Legal Services advised of progress in

any criminal investigations. On July 5, more than a month following

the delivery of the Williams' materials, the Department acknowledged

their receipt. By September 15, now more than three months following

delivery of the materials, the Department had failed to provide any 

updated information about the Williams matter and a request had 

to be made to learn the status of the case. A day later, I sp^ke

with an attorney from the Criminal Division of the United States 

Department of Justice who had been identified as one of two individuals

in that division with experience in FLORA matters. He advised me
that he had received no files from the Department or any other 

communications regarding FLCRA criminal prosecutions since 1972.

He had never heard of Wardell Williams.

Members of the committee, it is my belief that if we could

find Wardell Williams crew today, we would find farmworkers subjected to conditions similar to those encountered by the man who

sued Wardell Williams in 1978. If a member of your family were 

to be lured into Mr. Williams crew, how confident could you be that

your relative would receive the justice due to him through the

efforts of the Department of Labor?

I could probably testify for many hours about other serious

and repeat violators who have encountered my clients. Briefly,

I am constrained to say that they all continue in business and that

if my present clients are correct, they continue to engage in the

same practices which brought them to my attention in the first 

instance. Some of these individuals have been subjected to

civil money penalties, but I am unaware of any efforts taken

by the Department to collect these penalties.

IV. Enforcement can be Constructive

Grower representatives frequently contend that they cannot

comply with FLORA because of the expense associated with compliance.

Should the committee receive such representations today, I hope that

they will subject them to greatest scrutiny. Insofar as the cost

of providing decent housing is concerned, the committee should be

infonned that the Farmers’ Home Adm -.n-i s t . - r a t i nn of the United States

Department of Labor makes money available through sections 514 and

516 of the 1949 Housing Act at interest rates as low as 1% for

rural rental housing projects for farm labor. FmHA indicates that
growers on Maryland's Eastern Shore have refused to accept such low

interest loans because they do not wish to be individually liable

for the notes. Clearly, the growers have made an economic decision

in favor of incurring the possible costs associated with detection

of their conduct instead of incurring the cost of 1% FmHA loans.

Perhaps if the growers in Maryland were given more of an incentive

to take advantage of FmHA programs by DOL enforcement activities,

camps like Westover will cease to exist. Insofar as record-keeping

requirements under FLORA are concerned, they are not substantially 

different from the record-keeping requirements imposed upon every 

other American employer. Agribusiness must be called upon to

articulate some justification for why it should be privileged

and not subject to the rules of fair play and basic decency

which govern the activities of other major employers.

The- consequences of failing to bring meaningful sanctions

upon repeat and serious violators of TLCRA impact upon the

entire industry. Individuals failing to abide by the requirements 

of the law operate at a lower cost ~;han their competitors. Obviously

a crew leader who does not pay social security taxes is not subject

to a cost of more than 12% of his payroll which a law-abiding

competitor must pay. Unless violators of the Act are punished,

an ethic will prevail in agribusiness that you must act like

Wardell Williams to survive as a farm labor contractor. The

Department must initiate vigorous enforcement actions as soon as

possible to prevent such an ethic from prevailing in the farm labor

market.

V. Conclusion

The conditions related to the committee today hardly bespeak

a need for less vigorous regulation of Farm Labor Contractors. The
abuses which we have attempted to document have resulted from corporate as well as individual conduct. Individuals who now violate 

the act could quickly adopt a corporate form and seek to exempt 

themselves from FLORA coverage if the act is amended in the manner

now proposed by agribusiness.

I hope that this committee will, try as best as it can to

insure that the Department of Labor extends the protection of

the Act to more workers rather than permit the scope of the act

to be seriously dimished.
121

Testimony of Arthur N. Read, Camden Regional Legal Services, Inc.

Subcommittee on Manpower and Housing, Committee on Governmental Operations

U. S. House of Representatives

November 13, 1979

My name is Arthur Read and I am an attorney with the Farmworkers

Division of Camden Regional Legal Services, Inc. in Vineland, New Jersey.

I wish to focus the Committee's attention on an example of a

Farm Labor Contractor whose treatment of his workers highlights the

need for the Farm Labor Contractor Registration Act (FLCRA) as a tool

to curb abuses. It also highlights need for more vigorous and effective

enforcement of FLCRA by the U.S. Department of Labor. Finally this

case shows what a tragedy it would be to exempt Farm Labor Contractors

from the Act merely because they are "regular employees" of coroporate

employers.

Marcos Portalatin is forty-four yearo old,300 pound farm labor

contractor who was born in Puerto Rico and has worked in the South

Jersey area for 20 years. In May 1974 he attacked a paralegal from Camden Regional Legal Services Farmworker Division with a knife when the para 

legal came to the farm where he was the crew leader to speak to workers

there. The paralegal escaped uninjured and Mr. Portalatin was ultimately

convicted of a disorderly persons offense and fined $25. In July 1974

New Jersey State Assemblyman Byron Baer accompanied by reporters returned

to the same farm and was attacked by Mr. Portalatin. Mr. Baer suffered

a broken forearm and a newspaper reporter received cuts and bruises. The

cars of Mr. Baer and others who accompanied him were attacked and their

windows broken. In subsequent criminal proceedings Mr. Portalatin was
acquitted of all charges.

In September 1974 a federal grand jury indicted Mr. Portalatin on a

nine count indictment charging amonst other things that he had held workers

in peonage and had violated the civil rights of workers by his assaults

on the representatives of Camden Regional Legal Services, a federally

funded program. Mr. Portalatin was again acquitted on these charges.

As these events occurred prior to the 1974 amendments to the Farm Labor 

Contractor Registration Act Mr. Portalatin's 1974 recruiting was

exempt from the Act.

This year in April 1979 Mr. Portalatin apparently made arrangements

with a neighboring South Jersey farm, Leonard Farms Corporation, to

recruit a crew of 30-40 workers to harvest asparagus in rural Delaware

near Wyoming, Delaware. Leonard Farms Corporation agreed to advance money 

for air fare for workers recruited in Puerto Rico. It was aparrently

contemplated that upon completing the asparagus harvest in mid to late

June, Mr. Portalatin would bring his crew to South Jersey to do

work for both Leonard Farms Corporation and the farm where Mr. Portalatin

had worked most of the previous 20 years, Rosario Sorbello and Sons.

Mr. Portalatin concentrated his recruitment of workers on the

Ponce area and in a small mountanous town in the interior of Puerto

Rico, Cidra. In his recruitment Marcos Portalatin looked for young

teenagers who had never worked in the mainland U.S. and who did not

know English.

In mid-April Marcos Portalatin, two of his daughters and his
123

his son-in-law visited the Cidra area. They succeeded in gathering a

group of 12 potential workers who were promised that they would be able to

make good money of $180 to $200 per week and that they would have 6 months 

of steady work in New Jersey. The workers were told that they would have

to pay $30 a week for food and were promised good housing from which they

would be free to come and go as they liked. None of the workers were

given anything in writing.

At about the same time another group of workers was recruited by

Marcos Portalatin and his son-in-law Ismael Guzman from amongst

aquaintances of Ismael's from the Ponce area.

These two groups of workers were met at the San Juan airport a few

days later by members of Portalatin's family and flew from there to

the Philadelphia airport- From there they were transported to the

Rosario Sorbello and Sons Farm in Swedsboro, New Jersey. It was

here that their nightmare began. The workers were crammed into a small

sleeping area with 19 to 24 beds which were not even two feet apart.

The sheets and mattresses were dirty and broken and there was no place

to put clothes. The bathroom did not have doors and the toilets were

not working properly and had filled the place with a stench. After

two days of no work there because of rain,the workers were all loaded

into the Portalatin camper truck and transported to Delaware.

In Delaware the workers were aroused about 4 a.m. every morning.

They were given a donut and coffee and then immediately crammed into

the pickup truck and driven to the fields which were anywhere from 10

to 30 minutes away. In the fields the workers were set to work picking
124

asparagus at a back-breaking pace. Their only breaks were a 3 minute

break in the mid-morning for food and a 5 to 10 minute lunch break.

On the first day of work in Delaware one of the workers, a 19 year old

youth began to feel strong pains in his back, stomach and head. When 

he complained of these pains Marcos Portalatin asked for the youth's

asparagus knife and hit him with the handle end on his back, chest 

and the back of his head. As the boy stood up Marcos lunged at him

again with the knife. Despite his pains the young man returned

to cutting aspargus. A few minutes later when Marcos Portalatin

saw the same worker talking to another worker, he told him he

would be beaten if he didn't shut up and work.

After that the crew worked in fear. They were frequently

forced to work faster by threats of what would happen if they didn't.

Workers were told they would be run over by Portalatin's truck if they

didn't work fast enough and at time he would drive the truck behind them

in the fields accelerating it now and them to make them speed up.

The camp in Delaware was located in an isolated area and the

workers were never permitted to leave it on their own except when

they were permitted to walk in a group to a coin laundry nearby.

While they were in the laundry, Portalatin would drive by in his truck

regularly to see to it that no one tried to leave. Workers were told

that if they left the police would bring them back and that they would

be beaten. Indeed when some workers did successfully escape later,

several other workers were driven to the police station while Marcos

Portalatin went inside and were later told that the workers who had

left were being held in jail.
125

When pay day arrived the workers learned that after deductions

for food, sodas, cigarettes, alcohol, candy, travel,etc. they were

entitled to virtually nothing. Several workers received only a penny

for their 80-90 hours worth of work in a week. Any money which workers 

did receive they were persuaded to leave with Mr. Portalatin for

"safe keeping". One worker who failed to heed Mr. Portalatin's

instructions concerning leaving his money with him for safe keeping 

had all his money stolen while he was in the fields. When the

* worker demanded to call the police, Mr. Portalatin refused to

allow him to.

In mid-May O.S. Department of Labor investigators from the

Baltimore Area office met with Marcos Portalatin and one of the

corporate officers of Leonard Farms Corporation. Despite an apparent

claim by Leonard Farms Corporation that Mr. Portalatin was a

regular employee of theirs, U.S. Department of Labor investigators

determined that Mr. Portalatin was a Farm Labor Contractor. These

investigators explained to Mr. Portalatin his obligations under the

Farm Labor Contractor Registration Act. The U.S. Department of

Labor representatives apparently made no attempt to speak to

workers about their conditions of work or recruitment at that time.

They determined that so long as Mr. Portalatin voluntarily registered

as a Farm Labor Contractor, they would do no more than recommend

assessment of civil money penalties against him.

68-643 0 - 8 0 - 9
Within days of Mr. Portalatin's meeting with the U.S. Dpartment

of Labor representatives and without having filed any registration

papers as a farm labor contractor, Mr. Portalatin sent one of his

daughters back to Cidra, Puerto Rico to recruit more boys for the

asparagus work. Again glowing promises of good living and working 

conditions were made to the youths and their parents. Again nothing

was given to the recruited workers in writing. Again a group of

teenage boys who had never worked in the mainland U.S. and most 

of whom did not speak English were recruited to come to work.

This new group of workers arrived in Philadelphia on an

evening flight from Puerto Rico. They were pafcked with their

baggage like sardines into Mr. Portalatin's pickup camper van

and a car and arrived at the farm labor camp in Delaware at 1 a.m.

Only a couple of hours later this group of workers were ordered

out of bed at between 3:30 and 4:00 a.m. and told to get up for work.

These workers were similarly paid as little as a penny in net

earnings for their 80-90 hours of work in a week. They were not

permitted to leave the camp and one worker who was overheard 

threatening to escape had his pockets slit open and his

money taken away for "safe keeping". Other workers were shown

abandoned graves in fields where they were working and told that

they could expect to end up there if they did not do as they were told

Another worker from this new group was beaten for not working fast

enough when he had back pains. Again workers were told if they left
127

the police would come after them.

In early June George Carr of Legal Aid Bureau of Maryland

and Camden Regional Legal Services learned of Mr. Portalatin's

Delaware operation. Mr. Carr contacted the U.S. Department of

Labor's Region Three and Baltimore area offices and requested

a full investigation of the camp. Following this it was

learned for the first time that an earlier investigation had been

conducted in May. The U.S. Department of Labor promised a further

thorough investigation. Mr. Carr stressed to the U.S. Department

of Labor's area director that it would be necessary for U.S.

Department of Labor officers to find a way to speak to workers

in confidence so that they would not be subject to retaliation.

His concerns were apparently considered exaggerated by U.S. Department

of Labor officials.

Workers in the farm labor camp were meanwhile given strict instructions by Mr. Portalatin that they were not to speak to anyone from

outside the camp. They were told that they knew what would happen

to them if they did. When investigators were expected some workers

were told the police were looking for them and were made to hide

in the woods for hours.

This time the U.S. Department of Labor agents did reveiw some

wage records. They determined that excessive deductions from wages

had been made for travel advances and further apparently learned that

no proper records of hours worked were kept. No effort was made to
have Mr. Portalatin document other deductions that did not appear

in the farmer's pay records. No effort was made to question workers

out of the presence of the crew leader,or to determine the number

of hours which workers had been working, or to determine what 

workers had been promised at the time of recruitment.

Following this inspection and complaints from another worker

who had escaped the camp about mistreatment and beatings of workers,

Leonard Farms Coporation claims to have decided to fire Mr. Portalatin.

Mr. Portalatin responded by taking the bulk of the workers to the

Rosario Sorbello and Sons camp in New Jersey.

In late June the Farmworkers Division of Camden Regional

Legal Services was retained by several workers who had managed to leave

the Portalatin camp. Subsequently the step brother of one of these

workers indicated that he wanted to leave the camp if we would assist

him to recover his possessions. That night when we went with local police

to recover his possessions, six more workers asked to be able to

leave the crew with us.

Because of the workers accounts of fear and intimidation at the hands

of Marcos Portalatin , we asked that their paychecks be mailed to our

office on payday. When this did not occur we contacted the farm to

try to arrange to pick up their checks. Subsequently Marcos Portalatin

left a message that the workers checks were available, but that they

would have to come get them. By telephone we then advised Mr. Portalatin

that we had signed authorizations to pickup the worker's checks. We
129

were then invited to come to the farm to pick them up. While

at the farm in Mr. Portalatin's kitchen I was attacked and nearly

killed by him.

Unfortunately despite all the publicity and attention on the

plight of migrant farm workers that was stirred by this incident, we

have still been forced to contend with a bureaucracy that is excessively

slow and inefficent in responding.* We were able to establish a

good working relationship with the Trneton area office of the U.S.

* Department of Labor, but we discovered that the U.S. Department of

Labor's fragmentation into different Regions and Area Offices made

effective coordination of an investigation crossing different

• Regional and Area boundaries imposssible.

The bulk of our clients from the Portalatin camp were so

overwhelmed and frightened by their experiences with Marcos

Portalatin that they wanted above all else to return to Puerto

Rico as soon as possible. We were forced to follow the clients

to Puerto Rico to complete the affidavits necessary to establish the

full pattern of Marcos Portalatin's acts. At no time were agents from

the U.S. Department of Labor office in Puerto Rico utilized for follow-up

on the Portalatin crew and indeed it is our understanding that

the U.S. Department of Labor office in Puerto Rico conducts virtually

no FLORA investigations despite the large number of migrant workers

recruited there.

Although the U.S. Department of Labor's Trenton Area office

of the Wage and Hour Division agreed to allow us to supply affidavits from

‘Indeed Maria Portalatin who had been involved in the recruitment was promptly

and without question registered as a Farm Labor Contractor within days after I was

stabbed and her father fled to Puerto Rioo.
130

clients so as to complete the investigation of Marcos Portalatin, his

family and the farmers who employed him, the U.S. Department of Labor's

Baltimore Area office of the Wage and Hour Division insisted on

closing its investigation by settling for $60 per worker to be

repaid by Leonard Farms Corporation for excess travel deductions. This

was despite the Baltimore Area office's failure to determine the

hours worked by those in the Portalatin crew.

Furthermore, despite the fact that the Trenton Area office

was directed to close its FLCRA investigation in mid-August, *

we still have received no notification as to whether the

U.S. Department of Labor is prepared to pursue criminal charges

under the Farm Labor Contract Registration Act against Marcos Portalatin •

and others involved in his operation. Given how seldom the U.S.

Dpeartment of Labor has pursued criminal charges against FLCRA 

violators, this failure to act with speed is hardly surprising.

It is clear that without constant prodding by counsel for

vicitims, Congress and publicity, criminal prosecutions would

never have been considered here despite the conditions of virtual

peonage under which these teenagers were required to work.

Finally, it is important to take note of the effect of

current attempts to exempt all corporate farms and their employees

from the Farm Labor Contractor Registration Act. Had amendments to

FLCRA such as those proposed in H.R. 5575 been in effect, it is clear

that Leonard Farms Corporation would have claimed that Mr. Portalatin
However ineffective was a regular employee exempt from the Act.

U.S. Department of Labor enforcement of FLCRA may be, the fact

remains that the Farm Labor Contractor Registration Act provides 

one of the only effective means for redressing the abuses that

migrant farm workers can and do suffer at the hands of unscrupulous

crew leaders such as Mr. Portalatin. Amending this Act would 

strip farmerworker attorneys and advocates of one of the only

effective tools we have for redressing the injustices suffered

by many migrant farm workers. This should not be allowed to happen
132

Mrs. Collins. Our next witness will be Mr. Craig Berrington, the

Deputy Assistant Secretary of Labor for the Employment Standards

Administration. He will be accompanied by Mr. Basil Whiting, Deputy Assistant Secretary for OSHA, and Mr. David O. Williams, Administrator of the U.S. Employment Service in the Department of

Labor.

Would you identify yourselves for me, please?

STATEMENT OF CRAIG BERRINGTON, DEPUTY ASSISTANT SECRETARY OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION; ACCOMPANIED BY BASIL WHITING, DEPUTY ASSISTANT SECRETARY, OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION; DAVID 0. WILLIAMS, ADMINISTRATOR,

U.S. EMPLOYMENT SERVICE; AND RONALD WHITING, ASSOCIATE SOLICITOR, GENERAL LEGAL SERVICES

Mr. Berrington. Good morning, Madam Chairwoman. I am Craig

Berrington.

Mrs. Collins. Good morning.

Gentlemen, we have your testimony in full. May I ask you to summarize it, with the knowledge that this will all be placed in the record,

because we, unfortunately, are short of time.

Mr. Berrington. Certainly, Madam Chairwoman.

Mrs. Collins. Without objection, it will be included in the record.

Mr. Berrington?

Mr. Berrington. Thank you, Madam Chairwoman, and thank you,

members of the subcommittee, for the opportunity to be here today to

discuss the Labor Department’s enforcement of important Federal

laws relating to protection of farmworkers.

During the past 2y2

years, this administration, and particularly

Secretary of Labor Ray Marshall, has given high priority to improving both the working conditions of the Nation’s farmworkers and the

living conditions of Americans who live in rural areas.

I will start the presentation by giving a brief overview of the Labor

Department’s activities. My colleagues will then discuss the OSHA

responsibilities and the Employment and Training Administration

responsibilities, particularly those carried out through the U.S. Employment Service.

All of these programs are closely interrelated, and we have been

making special efforts over the last 2 years to coordinate them. We

have established task forces to deal with specific problems on coordination dealing with housing and the importation of temporary foreign 

labor.

For example, as a condition of accepting interstate clearance orders

for the recruitment of workers, the Employment and Training Administration conducts preoccupancy inspections of temporary farmworker

housing; the OSHA also has responsibilities for housing conditions,

but those responsibilities are more limited to the time in which farmworkers are actually occupying the housing or doing so imminently.

The Employment Standards Administration, again with another

piece of this activity, has responsibilities under FLORA to obtain
133

assurance from farm labor contractors that the housing camps they

either own or control meet Federal standards.

Recently, these three agencies—the Employment Standards Administration, ETA, and OSHA—have completed an agreement on coordination of housing inspections. The agreement includes provision for

coordinated targeting of housing inspections, for shared housing inspection information, and for referral of unsafe housing situations to

the agency that can best handle the enforcement in accordance with

the particular status of the housing at the time.

That housing coordination agreement serves as a major accomplishment to bring the three laws and three responsibilities into harness.

Mrs. Collins. Mr. Berrington, if you would permit, I think most of

the members of the subcommittee are familiar with what the Department of Labor as well as the other departments are supposed to be

doing about this problem. So, perhaps you could just skip that. We

would very much appreciate it.

Mr. Berrington. Certainly.

Let me move, if I may, to some of the items pertaining to enforcement of FLCRA, especially since those matters were discussed earlier.

Wo do require farm-labor contractors to register, and the amount of

registration which is done and which is required is one important indication of the effectiveness of the administration of the law generally.

Mrs. Collins. Let me ask you a question on that point before you

move away from it.

Both groups have testified that there is overregistration. You are

dealing with registering instead of getting down to spending your

manhours on some of the very important violations that are there.

Wbat would lie your response to that?

Mr. Barrington. We do not believe that there is overregist.ration

liecause registration is not, just a paper process. Registration includes

the requirement that the farm-labor contractor adhere to certain substantive provisions of the law; also, it gives us a record of farm-labor

contractors for purposes of further tracing, for determining violations, and for the dissemination of information.

Mrs. Collins. It is my understanding that the Department has indicated an increase in registration during 1978 which arose during its

enforcement drive. The question has been raised, why was a significant

lensrth of time spent in the seed corn industry, for example, when the

majority of seed corn workers are local, mainly high school students?

Mr. Berrington. We have no longer take the position that, where

students are involved, registration is necessary as a general matter.

Indeed, I would agree that the Department’s enforcement resources

were not most effectivelv utilized in that kind of situation.

But it is important. I think, to look at the registration statistics, not

because they tell the whole story, but because they do tell part of the

storv.

Mr. Bftler. May I interrupt at this point?

Mrs. Colltnr. Certainly.

Mr. Bftler.I just want to be sure I understand what von are saving. 

You had a change of position with reference to whether students

should, resrister. Is that what you are saying?

Mr. Berrtngton. There is a, srreat deal of corn detasseling which is

done by students—high school students to a large extent—during the
184

summer months in many States. In many instances, the transportation

or the supervision of those students is done by high school teachers or

coaches. In November 1978, an amendment to FLCRA was included

in the Perishable Agricultural Commodities Act Amendments that

excluded farm-labor contractors who were engaged solely in supplying full-time students to detassel hybrid seed com. We have taken the

position that in those kinds of situations where we are not dealing with

traditional migrant and agricultural farmworkers, the registration

requirements of the act are not to be vigorously pursued.

Air. Butler. That is your current position. How much energy did 

you extend going off in the other direction ?

Mr. Berrington. Toomuch. #

Mr. Butler. Is this a unique situation, or are you going to tell us

the rest of those examples ?

Mr. Berrington. The situation with corn detassling, while perhaps not the only possibility, wasin any case a fairly unique one. ?

Mrs. Collins. I wonder if I can get a unanimous-consent agreement,

because time is so limited, to start questioning our witnesses with the

understanding that much of what they have in their testimony will

be brought out through the questioning. Does anyone object to that?

Mr. Maguire.Noobjection.

Mr. Butler. I have no objection.

Mrs. Collins. Thank you.

Mr. Berrington, in your prepared statement, you say, on page 10,

that top priority has been given to identifying and investigating contractors who have repeated violations. You say, “This administration

has given high priority to improving the working conditions of the

Nation’s farmworkers.” But when I look at the data which your Department supplied to this subcommittee on the small number of people assigned to enforce the Farm Labor Contractor Act and the almost total lack of civil and criminal penalties which have been meted

out, I reach a different conclusion.

First, I would like to ask if you believe 58 man-years for enforcement is evidence of a high priority being placed on the administration

of this act by the Department.

Mr. Berrington. We have substantially increased the priority over

the last 2/

2

years.

Let me give you some statistics because I think, if you look just

at the man-years devoted to it, you do not get the full picture. Al- *

though we have not, in fact, devoted as many man-years as we would

have wanted or planned to last year, or will next year, if you look at

the enforcement actions—the baseline activity—you will see a much

more dramatic increase. *

In 1975, for example, there were fewer than 1,000 enforcement investigations conducted under FLCRA in that entire fiscal year. In

1978, there were 3,823; and in fiscal year 1979, even though we did 

not reach the entire manpower complement that we w’anted to, we

increased the number of enforcement actions to 5,708. That is an increase of 66 percent over a year. We think that show’s some progress.

Mrs. Collins. Why have so fewT positions been budgeted for enforcement, and why has this budgeted level of enforcement not actually been allocated to FLCRA ?
135

Mr. Berrington. The FLCRA budget has increased, n fact, it

almost doubled within the past year. The budget for FLCRA is related to the salaries and expense budget for the Employment Standards Administration, which involves the Fair Labor Standards Act

as well.

In some specifics, I believe the budget was approximately $1.2 million just a few years ago, and it is about $2.6 million now. I can get

the exact figures for you, but the budget has increased substantially.

Mrs. Collins. Without objection, those figures will be included in

the record at this point.

[The material follows:]

FLCRA Budget F rom F iscal Year 1975 T hrough F iscal Year 1980

1975 1976 1977 »1978 1979 1980

Total budgeted positions........................ 19 38 38 38 72 72

Compliance officer positions.................. 16 28 28 28 58 58

Support positions...................... ......... 3 10 10 10 14 14

Budget (in thousands)........ ................... $514 $1, 058 $1,154 $1, 277 $2,168 $2, 281

•Does not include 30 compliance officer and 4 support staff positions received in a 1978 supplemental passed on Mar. 7,

1978. The compliance officers could not be hired and trained to become fully effective before the end of the fiscal year.

Mrs. Collins. I believe it was Mr. Ellsworth’s testimony, and the

group who just left the table agreed, that of all these enforcement citations, only 5.2 percent were for meaningful citations. Why is that

number so small ?

Mr. Berrington. I do not agree with that, and I can show you data

on that point.

The specific data on the budget were: In 1978, the budget amount

for FLCRA enforcement was $1,277,000; in fiscal 1979, it was $2,168,-

000; and we plan to increase that in 1980. I should also add that that

does not represent the full amount of activity spent on FLCRA

because we have joint investigations involving the Fair Labor Standards Act, and the full amount spent is somewhat in excess of these

amounts.

Mrs. Collins. Will you provide for the subcommittee the kinds of

citations that were issued, similarly to what has been done by Mr.

Ellsworth’s group ?Then we can see from a comparative analysis what

you thought was important and critical. I find agreement between

both of the groups who were just here that a lot of time is being wasted

on what they consider to be unimportant things, certainly not getting

at what the meat of the act is supposed to be.

Mr. Berrington. Yes. I would be glad to supply those data.

Mrs. Collins. Without objection, they will be included in the record 

at this point.

[The material follows:]

The attached table represents violations of the Farm Labor Contractor Registration Act found during FY-1979. The statistics, shown by Regions and National

totals, indicate the number of times farm labor contractors, farm labor contractor employees, and users of farm labor contractors were cited for violations of

the specified Sections of the Act.
U S. . DEPARTMENT OF LABOR

SUPPL EI D BY:

BRANCH OF WAGE HOUR STAT SI T CI S

DM CI S O- AM E- SA

TABLE 1

boston

EMPLOYMENT STANDARDS ADM NI SI TRAT OI N

1: REG OI NAL SUMMARY OF FLC«A COMPL AI NCE ACT OI NS

SEATTLE

PER OI D OF 09-21

NEW

YORK PHI LA

•78 TO 0 9 -2 0 -7 9

DETA LI S OF

COMPL AI NCE ACT OI NS

ALL

REG OI NS

KANSAS SAN

FRAN ATLANTA CH CI AGO DALLAS city DENVER

flc/ flce v oi lat oi ns 2313 67 129 233 602 176 608 31 50 388 29

1A NO CERT FI CI ATE 4(A ) 712 56 12 58 174 42 127 21 23 186 13 18 NO DI CARD 4(B ) 482 2 29 43 172 23 90 3 21 95 -4 2 FAIL TO EXH CERT FI 6(A) 987 56 28 72 315 68 178 23 31 2C0 16

3 D SI CLOSE TO WKRS 6(B ) 867 56 44 100 255 100 177 24 6 106 19 4 POST AT S TI E 6(C ) 956 62 42 66 233 98 278 24 12 116 25 5 M SI REP TO WKRS 5 (B )(2 ) 25 5 4 4 5 1 1 2 3

6 FAIL TO KEEP RECS 6(E) 110 6 10 40 7 22 14 2 6 3 7 NI ACC/ NI COMP RECS 6(E) 133 2 24 42 11 32 1 20 1 8 RECS FURN TO USER 6(E) 308 2 14 33 69 12 62 11 2 86 17

9 STMT OF S TO WKR 6 (E) 827 62 51 116 264 34 183 13 3 86 15 10 LI LEGAL AL EI N WKRS 6 (F ) 215 4 20 62 6 72 10 36 5 11 PROPER S PAYMENTS 6 G( ) , 32 3 4 11 1 2 1 8 2

12 WORKER PURCHASES 6(H ) 10 1 2 3 2 1 1 13 UNAUTH TRANSP 5 (A )(4 ) 561 54 29 62 179 24 143 10 11 42 7 14 OPER VHCL USED 5 (B )(8 ) 695 58 38 76 276 21 153 7 9 52 5

15 VHCL SAFETY 5 (B )(8 /1 2 ) 307 18 5 31 95 8 120 6 9 12 3 16 VHCL NI SUR 5 A (2 )/B (5 ) 396 19 41 149 15 130 8 10 20 4 17 NOT TO SEC VHCL 5(D ) 89 2 15 54 7 5 3 3

18 UNAUTH HOUS NI G 5 (A )(4 ) 224 5 24 47 78 16 16 5 12 17 4 19 HOUS SFTY H/ LTH 5 ( 6 ) ( 12) 158 4 45 77 3 13 4 4 5 3

20 POST HOUS CONDS 6(D) 187 1 10 36 87 10 13 3 7 17 3

21 NOT TO SEC HOUS 5(D ) 67 2 5 40 2 2 4 12

22 FLSE STMTS APPL 5 (B )(1 ) 36 1 1 1 . 24 2 3 3 1

23 BOGUS CERT HDR 5 (B )(1 1 ) 9 1 6 2

24 BREAK WKR AGREE 5 (B )(4 ) 24 3 8 3 1 7 2

25 BREAK USR AGREE 5 (B )(3 ) 19 4 6 1 2 5 1

26 D SI CR TESTIF EI RS 13(A) 5 2 2 1

27 H RI E UNREG FLC 4(C ) 57 1 4 8 25 3 15 1

28 H RI E UNRG FLCE 5(B )(1O ) 348 3 24 39 126 10 69 3 8 64 2

29 H RI E O SI OL FLC 5 (B )(9 ) 6 1 2 2 1

USER V OI LAT OI NS 706 20 20 99 154 57 91 22 15 187 41

30 H RI E UNREG FLC 4(C ) 546 19 14 79 142 49 65 19 15 105 39

31 FAIL KEEP PAYROLL RECS 52 2 5 3 4 6 32

32 NI ACC/ NI COMP PAY RECS 9 4 1 4

33 FAIL OBTA NI CONTR RECS 190 9 24 43 11 26 11 2 46 8

34 NI COMPLETE CONTR RECS 116 1 2 16 1 13 78 5 35 0TSCO TCCTTctpo^ 5 2 1 1 1

*
137

Mr. Berrington. We agree. We would like to spend, and we have

been spending more time, on the meat of enforcement.

Mrs. Collins. Why?

Mr. Berrington. Why should we be spending more time on it, or

why-----

Mrs. Collins. Why have you not?

Mr. Berrington. Because we have had substantial resistance to even

the basics of the act.

Mr. Maguire. Could we ask from whom, Madam Chairwoman.

Mrs. Collins. Yes, indeed. From whom?

Mr. Berrington. I think the litigation speaks for itself as far as

substantial insistence is concerned from the farmowner and the corporate farm community. There is resistance, as Mr. Ellsworth pointed 

out, to the Department’s reading of this law since it was amended in

1974 to cover corporate farming activity. There is also resistance from

the farm labor contractors who move around very frequently.

It is very difficult for any organization to get a handle on that.

Until we can deal with the registration problem—although that is not

the be-all and the end-all by any means—and until we can deal with

some of the basic issues, it is going to be difficult, although not impossible, to get to the meat of the act.

Mr. Maguire. The next question, then, is this. Given the resistance

which you have explained-----

Mr. Berrington. Mr. Ellsworth has explained, I think.

Mr. Maguire [continuing]. How does that affect the Department of

Labor's behavior on this matter?

Mr. Berrington. For example, there are instances of corporate

farms bringing injunctive actions against the Department to try to

keep it from enforcing the act. While they have not been entirely successful, they have caused difficulties in various parts of the country

for the Department.

Mr. Maguire. Thank you. Madam Chairwoman.

Mrs. Collins. I do not find that a totally acceptable argument because I think the Department of Labor has a mandate from Congress

as well as from the people of the United States to implement the act

that the Congress passed. I can understand where there might be some

legal problems; but I do not understand, especially since the criminal

provisions have been put in, (1) how your hands can be so critically

tied that you cannot get down to the nuts and bolts of what is going

on here, and why people still today are living in totally substandard

housing, (2) how people can get 1 penny for a week’s work, and (3)

how you have almost slave labor, if you will, and the Department does

not at least raise an eyebrow let alone do some serious enforcement of

its own laws. I just cannot understand that. I find that very difficult

to swallow.

Mr. Berrington. Madam Chairwoman, from the period of September 1978 to September 1979, the Department has carried out almost

6.000 compliance actions.

Mrs. Collins. What has that resulted in?

Mr. Berrington. We have numerous injunctions against employers,

against farm labor contractors; as the testimony indicates, we have

assessed several million dollars in penalties against farm labor contractors.
138

Mrs. Collins. H ow much have you collected ?

Mi'. Berrington. Not nearly as much as we would like.

Mrs. Collins. H ow much ?

Mr. Berrington. I think over $300,000.

Mrs. Collins. Only $300,000 ?

Mr. Berrington. It is a judicial process, and the courts take a very

active role.

Mrs. Collins. Are the employers’ records sufficient to get the money

into the hands of the affected workers themselves?

Mr. Berrington. In some cases, yes; in some cases, they are not.

Mrs. Collins. W hat is the average percentage of earnings?

Mr. Berrington. I would be glad to supply that for the record.

Mrs. Collins. Without objection, it will be included in the record at

this point.

[The material follows:]

Civil money penalties assessed under the Farm Labor Contractor Registration

Act are, pursuant to Section 9(b)(5), “paid into the Treasury of the United

States.” No monetary collection of the penalties is distributed to the affected

workers. Accordingly, information is not collected to show the average percentage

of earnings. Should workers be found due monies under the Fair Labor Standards

Act from farm labor contractors, collection would be handled under that Act. Agricultural workers received restitution of minimum wages and overtime pay under

the Fair Labor Standards Act in FY 1979 of $1,933,026 of $3,349,662 found due.

Mrs. Collins. Let me ask you about a case I happen to have my

hands on right now. We have this case on file where an administrative

law judge issued a decision on December 28, 1978. This is one of the

Department of Labor cases, incidentally. It denied a crewleader his

contract certificate of registration for 1977 and 1978 and assessed a

money penalty of $8,500 on two counts.

This contractor had been investigated again in 1975 with a consent

judgment against him, and again in 1976 another consent judgment.

Apparently the crewleader worked during 1977 and 1978 despite

the retroactive denial of his certificate. Here is a crewleader who violated the law in 1975, 1976, 1977, and 1978. And what I want to know

is, do we have the money yet?

Mr. Berrington. I do not know the name of the case. I am sure you

can give it to me.

Mrs. Collins. I will let you see it. I do not know if I should reveal

the name of the case because apparently the case is still going on, but

you are welcome to look at this.

Mr. Berrington. We will be glad to provide that information for

you.

[The material follows:]

The Department of Labor obtained injunctions against this individual in 1975

and 1976 for labor standards violations. He was assessed civil money penalties

under the Farm Labor Contractor Registration Act (FLCRA) of $4,050.00 on

January 28. 1977, $4,450.00 on May 25. 1978, and $3,650.00 on August 2, 1978. On

December 29, 1978, after a hearing was held, an administrative law judge ordered

full payment of the $12,150.00 in civil money penalties. The judge also ordered

the denial of the farm labor contractor registration certificate for the individual

for 1977 and 1978, hut not for 1979.

The Department has had difficulty in locating this individual and has asked

the F.B.I. to seek to locate him. The Department is planning to refer the file in

the very near future to the appropriate U.S. Attorney’s office in accordance with

the statute for collection of the civil money penalties.

Civil money penalties amounting to $2,350.00 were also assessed against this

individual's wife on June 21, 1979. The hearing which he has requested has not as

yet been scheduled.
139

Mrs. Collins. And that is 4 years this has been going on; nothing

lias happened. Without even knowing what case this is, can you address the fact that it has been 4 years that this kind of flagrant violation has been going on ?Has anything been done ?

Mr. Berringtox. Obviously-----

Mrs. Collins. Obviously, nothing has been done.

Mr. Berringtox. No; obviously, things have been done, but I do not

know about the case specifically.

Mrs. Collins. I think cases like this are illustrative of a number of

cases that you have on file where there is just no action taken. These

things recur, and recur, and recur, and nothing ever happens, and the

Department acts as if it does not know about them, but clearly it does.

What is the cause for something like that? Is it all attributable to

backlog ?

Mr. Berringtox. The litigation process is within the control of the

Solicitor. I have here the Associate Solicitor, Mr. Whiting. Maybe he

would like to address it.

Mrs. Collins. How much backlog is there, Mr. Whiting?

Mr. Whiting.May I step up to the table ?

Mrs. Collins. If you identify yourself for the record.

Mr. Whiting.I am the other Mr. Whiting.

Mrs. Collins.Which Mr. Whiting are you ?

Mr. Whiting. I am Mr. Whiting with the Solicitor’s office.

Mrs. Collins.What is your first name?

Mr. Whiting. Ron.

Mrs. Collins. Ron Whiting—OK.

Mr. Whiting. I am the Associate Solicitor for General Legal Services, which encompasses a whole range of programs, including

FLCRA.

I am not sure what case it is you are talking about, but certainly

there have been some injunctions obtained in the past where we have

received information indicating subsequent violations.

The way we will be going about this will be to go back to those

courts and have an investigation, and talk in terms of contempt actions. Once we have the injunctions, that is probably our best handle.

Mrs. Collins. How often do you follow’ up ? It seems to me it is a

question of followup. I understand that there have been only 22 hearings held in the first place and that there is a backlog in the Solicitor’s

office of approximately 1,000 cases.

Mr. Whiting.Let me address that issue, if I may.

Mrs. Collins. Yes. And then get back to the followup. I want you

to addressthose two things.

Mr. Whiting. OK.

On the backlog, as you will remember, the real enforcement mechanisms were put into this act in late 1974 with normal gearup to

the end of the pipeline after the penalties assessment systems are in

place and after the investigations. Even as late as 1977, the number of

contests under this act was only 99. However, in 1978, wrhen the enforcement really hit, we had a sixfold increase of administrative legal

actions referred to the Solicitor’s office. I think there were something 

like 640 in that year. What happened, quite frankly, was that during

that same period w*e w’ere heavily involved in some court of appeals

litigation, in interpreting some of the acts.

We have been doing some of the opinion work, and within my own
140

division, we have a whole group of laws we have to concern ourselves

with.

We recognized early on that we were not going to be able to handle

the litigation in Washington under this program; but also in the last

1^5 years, the DOL has had to undergo 5 or 6 substantial decentralizations to our regional offices, of which there are approximately 15.

For instance, we inherited all Government enforcement of the

OFCCP, or the Civil Rights Government Contract Act.

Mrs. Collins. We understand all that. We hear that every time

we have a hearing. Someone comes in here and tells us all about the

encumbrances. We realize that there are some. But we do expect to

see some kind of positive actions on things that are brought to your

attention, either through your own people or through the newspaper,

or through word of mouth, or whatever. I can fully understand

where you might have a lot of legal processes to go through, but your

track record is lousy.

Mr. Whiting. Let me tell you what we have done, and what I think

will happen in the future, and what I know will happen in the future.

We did try to establish some priority in our own office to revocation

cases, to undocumented worker cases, and, to the extent we could,

repeat violator cases. We also decentralized about 8 months ago all

of the cases that the California region had, the reason being there

that that particular region had the resources available to handle the

cases more rapidly. As a matter of fact, the statistics we supplied

this committee, we realized afterwards, do not include—I believe the

statistics were somewhat over 100 cases that have been filed under

the administrative procedures. That did not include 44 that have been

filed directly by the California office.

I have pulled other people off other programs in the last 2 months

within my own office to try to give this priority. We have filed something like another 140 cases. We now have 270 cases.

Given the repetitiveness of the backlog because of the increase in

wage-and-hour investigations, we still realize we are going to have

to decentralize the function to our regional offices, and we are in the

process of doing the decentralization.

Mrs. Collins. When do you hone to get through the process?

Mr. Whiting. We hope it will he intact and working by early

December.

Mrs. Collins. You do not have to use lawyers to handle these cases

do you ?

Mr. Whiting. To handle the actual hearings in front of the administrative law judges ?

Mrs. Collins. Yes.

Mr. Whiting. We feel we do because we do run into a lot of legal

issues, some of which end up in the court of anneals. You also have

the problem that you are going to be cross-examining witnesses, and

defendants—or the bigger defendants or repeat violators—are represented bv good counsel.

Mrs. Collins. Thave about five more questions, and I have used up 

all my time, but iust answer one for now. Why don’t vour compliance

officers present the cases? Ts it not possible, in some of the cases, that

they could do that for the administrative law judge? Ts that not better

than having the cases go stale and then throwing them out?
141

Mr. Whiting. We all hope the new system will go a long way toward remedying that problem. But in terms of the other side being

represented by counsel, I think we would have a problem if we did not

have an attorney. I think we would be criticized for not having adequately presented the case.

Mrs. Collins. OK.

As I said, I have some more questions, but I am going to yield to

Mr. Butler who wants to ask his questions, and then we will go on to

Mr. Maguire who also has questions he would like to ask.

Mr. Butler. Thank you.

Are your remedies adequate under the statute? Are there any

changes that need to be made there? You cannot blame it on the act, 

can you?

Mr. Whiting. I should probably defer to the administrative people

on that. I would have to say that there is a broad range of remedies,

and when I was talking about what we were just doing recently, I was

only talking about one of three or four possible actions that can be

taken. We can take a licensing action; we can take a civil money penalty

action; we can take a criminal action; and we can take an injunctive

action. So, there is a fairly wide range.

Mr. Butler.The spectrum is broad enough, is it not ?

Mr. Whiting. Yes. And the backlog I was talking about was the

civil money penalty. We are not talking about the injunctive backlog,

the licensing backlog, or the criminal backlog.

Mr. Butler. But they are on roughly the same “rapid” pace of

resolution, are they not ?

Mr. Maguire. Would the gentleman yield? I wonder if he would

make sure that the word, “rapid,” is enclosed in quotation marks in the

record, because I think that was the way the gentleman intended it,

was it not ?

Mr. Butler. Your perception is correct.

Mr. Whiting. As to anything else, I should defer to Mr. Berrington,

I think.

Mr. Butler. Mr. Berrington ?

Mr. Berrington. As a statutory matter, the remedies are adequate.

Mr. Butler. Now, let us turn to a suggestion made in the testimony.

According to a previous witness, the Department has not published 

regulations to comply with the 1974 amendments. My question, of

course, is: Why not? What is your timetable with reference to that?

While we are on that, you might also address yourself to the letter of

January 4,1978, containing some 21 questions—as to why that has not

been answered.

Mr. Berrington. It is not true that the Department has not published regulations under the act. I have them here.

Mrs. Collins. Without objection, they will be included in the

record at this point.

[The material follows:]

The attached Regulations, Part 40: Farm Labor Contractor Registration

Subpart A-Registration, Subpart B-Administrative Proceedings, were promulgated by the Secretary of Labor pursuant to authority contained in the Act.

The Regulations relate to the issuance, renewal or replacement of Farm Labor

Contractor Certificates of Registration and Employee Identification Cards, the

obligations and responsibilities entailed in the Act, the issuance of civil money

penalties and the rules of practice for administrative hearings.

68-643 0 - 8 0 - 1 0
142

Regulations, Part 40:

Farm Labor Contractor Registration

Subpart A-Registration

Subpart B-Administrative Proceedings

Title 29, Part 40 of the Code of Federal Regulations

Registration Requirements and Administrative Proceedings including

Assessment, Notice, and Collection of Civil Money Penalties for Violations

U.S. Department of Labor

Employment Standards Administration 4

Wage and Hour Division

WH Publication 1369

Revised August 1979
143

Regulations, Part 40: Farm Labor Contractor Registration

Subpart A - Registration

Subpart B - Administrative Proceedings

This publication conforms to the Code of Federal Regulations as of August 13,1979,

the date this reprint was authorized.
144

PART 40— FARM LABOR

CONTRACTOR REGISTRATION

Subpart A— Registration of Farm Labor

Contractors and Their Full-Time Employees

G eneral

Sec.

40.1 Purpose and scope.

40.2 Definitions.

40.3 Certificate of Registration required.

40.4 Farm Labor Contractor Employee

Identification Card required.

40.5 Corporations, partnerships, associations and other organizations.

40.6 Public central registry.

40.7 Compliance with State statutes.

40.8 Filing of applications, notices and documents.

40.9 Accuracy of information, statements

and data.

Registration Requirements

40.11 Filing of applications for Certificate

of Registration.

40.12 Execution of application for Certificate of Registration.

40.13 Appointment of Secretary as agent

for substituted service.

40.14 Vehicle liability insurance.

40.15 Proof of financial responsibility in

lieu of insurance.

40.16 Qualifications and eligibility of insurance carriers.

40.17 Duration of insurance or liability

bond.

40.18 Limitations on cancellation of insurance or liability bond.

40.19 Authorization to transport migrant

workers.

40.20 Authorization to house migrant

workers.

40.21 Expiration and renewal of Certificate

of Registration.

40.22 Replacement of Certificate of Registration.

Employee Identification

Sec.

40.31 Filing of application for Farm Labor

Contractor Employee Identification

Card.

40.32 Execution and Content of application

for Farm Labor Contractor Employee

Identification Card.

40.33 Authorized use of Farm Labor Contractor Employee Identification Card.

40.34 Replacement of Farm Labor Contractor Employee Identification Card, lost

card or change of employment.

40.35 Expiration and renewal of Farm

Labor Contractor Employee Identification Card.

Action on Applications

40.41 Office of filing, action.

40.42 Issuance, refusal to issue, suspension,

revocation or refusal to renew: Farm

Labor Contractor Certificate of Registration or Farm Labor Contractor Employee Identification Card.

40.43 Issuance of Farm Labor Contractor

Certificates of Registration and Farm

Labor Contractor Employee Identification Cards by States.

Obligations and Prohibited Acts

40.51 Obligations of a farm labor contractor.

40.52 Obligations of person holding valid

Farm Labor Contractor Employee Identification Card.

40.53 Obligations of grower, processor, and

other user.

40.54 Discrimination prohibited.

Violations and Sanctions

40.61 Report of violations, investigations,

issuance of subpenas.

40.62 Sanctions.

40.63 Certificates of Registration and

Farm Labor Contractor Employee Identification Cards—grounds for revocation

or suspension or refusal to issue or to

renew.

40.64 Denial of facilities and services of

Wagner-Peyser Act.

40.65 Civil money and other administrative

penalties.

40.66 Waiver of rights.

Subpart B— Administrative Proceedings

G eneral

40.101 Establishment of procedures and

rules of practice.

40.102 Applicability of procedures and

rules.

Procedures Relating to Hearings on R efusal To Issue or Renew, or T o Suspend

or R evoke, a Certificate of Registration

or a F arm Labor Contractor E mployee

Identification Card
145

Sec.

40.111 Refusal to issue or renew, or to suspend or revoke—written notice required.

40.112 Contents of notice.

40.113 Request for hearing.

P rocedures Relating to H earings on Civil

Money P enalties

40.121 Assessment of civil money penalty,

written notice required.

40.122 Contents of notice.

40.123 Request for hearing.

40.124 Civil money penalties—payment and

collection.

P rocedures R elating to Hearings for

Denial of W agner-Peyser F acilities

40.131 Denial of facilities and services authorized by Wagner-Peyser Act.

40.132 Contents of notice.

40.133 Request for hearing.

40.134 Automatic denial of facilities and

services authorized by Wagner-Peyser

Act—duration.

P rocedures R elating to the F iling of a

Complaint Alleging Discriminatory

Conduct

40.141 Discriminatory conduct—complaint.

F orm and T ime of Request for Hearing

40.151 Form of request.

40.152 Time for making request.

P rocedures Relating to S ubstitute

S ervice

40.161 Change of address.

40.162 Substituted service.

40.163 Responsibility of Secretary for service.

R ules of P ractice

GENERAL

40.201 Commencement of proceeding.

40.202 Designation of record.

40.203 Caption of proceeding.

R eferral for Hearing

40.210 Referral to Administrative Law

Judge.

40.211 Notice of hearing.

40.212 Supplemental Pleadings.

Service of P leadings and Documents

40.220 Service of documents—manner of

service.

Sec.

40.221 Service upon the Department of

Labor—number of copies.

40.222 Proof of service.

40.223 Computation of time.

P rocedures Before Administrative Law

J udge, G enerally

40.230 Authority of Administrative Law

Judge.

40.231 Appearances; representation of parties.

40.232 Pleadings allowed.

40.233 Motions and requests.

40.234 Subpenas.

40.235 Witnesses and fees.

40.236 Depositions.

40.237 Prehearing conferences.

40.238 Consent findings and order.

Hearings

40.251 Hearing procedures generally.

40.252 Evidence at the hearing.

40.253 Official notice.

40.254 Transcripts.

P ost-Hearing Procedures

40.261 Proposals by the parties.

40.262 Decision and order of Administrative Law Judge.

Record

40.271 Retention of official record.

40.272 Certification of official record.

Authority: Sec. 14, 78 Stat. 924, and sec.

17, 88 Stat. 1659 (7 U.S.C. 2053); Secretary’s

Order No. 16-75, 40 FR 55913; and Employment Standards Order 2-75, 40 FR 56743.

Source: 41 FR 26820, June 29, 1976, unless

otherwise noted.

Subpart A—Registration of Farm

Labor Contractors and Their FullTime Employees

G eneral

§ 40.1 Purpose and scope.

(a) Congress, in enacting the Farm

Labor Contractor Registration Act of

1963, as amended (“the Act”), found

“that the channels and instrumentalities of interstate commerce are being

used by certain irresponsible contractors for the services of the migrant agricultural laborers who exploit producers of agricultural products, migrant
146

Mr. Berrington. We do have regulations for the act, as amended

in 1974.

If I can get to what I think Mr. Ellsworth was talking about, I

believe it is important to know that regulations, which is the primary

way in which Federal agencies inform the world about their activities,

have been published.

Mr. Butler. They rewrite the statute, and then they go to interpretive rulings, or something of that nature.

Mr. Berrington. Without comment on that, regulation have been

in place for several years.

There is, however, an interpretive bulletin, which goes beyond the

regulations, which we have been working on, and which we hope to »

have completed fairly soon.

But as to the basic regulatory processes and requirements, they

have been on the books for some time.

In relation to the letter that was mentioned, it raises numerous *

questions, many of which have been answered in opinion letters that

the Department has issued. I believe we have issued 23 opinion letters

in addition to the regulations. There are other questions which have,

I suspect, not been answered in a public form. We can have a letter

completed shortly—within the next 10 working days—and we will do

so.

Mrs. Collins. Will the gentleman yield ?

Mr. Butler. Surely.

Mrs. Collins. That brings me to Mr. Ellsworth’s statement. He talks

about Charles Kelso, counsel for the Florida Fruit & Vegetable

Association. He says they have been waiting 2 years to get some kind

of written reply. Do you know anything about that particular thing,

or can you look into it?

Mr. Berrington. Yes, I would be glad to. We can get a response.

It is inappropriate that a specific response did not go out earlier.

As a mitigating factor—and I say it only as a mitigating factor—

but not in derogation of the need for a response, Mr. Kelso and Mr.

Ellsworth, I l>elieve. are aware of the opinion letters—the public opinion letters—which the Department has issued. I believe Mr. Ellsworth is on our mailing list, as a matter of fact. Many of the issues

raised—but by no means all of the issues raised—by Mr. Kelso’s letter

have lieen addressed in that way.

Mr. Butler. Just to pin this down, you are going to respond specifically to this January 4,1978, letter within 10 working days?

Mr. Berrington. Yes, we will.

Mr. Butler. So that the record may be clear, would you keep us

posted ? *

Mr. Berrington. Yes. sir.

Airs. Collins. Without objection, it will be included in the record

at this point.

[The material follows:]
147

U.S. DEPARTMENT.OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION

Wage and Hour Division

WASHINGTON. D.C. 20210

Page 110

EC Q Bt9

Charles Kelso, Esq.

Fisher & P h illip s

3500 F irs t National Bank Tower

Atlanta, Georgia 30303

Dear Mr. Kelso:

This is an o ffic ia l reply to your le tte r of January 4, 1978, which

includes twenty-one questions regarding the application of the

Farm Labor Contractor Registration Act (FLCRA, copy enclosed). I t

provides answers to your questions, many o f which have previously

been answered inform ally or through Wage-Hour opinion le tte rs

available to the general public. I t appears to us that many o f the

questions you pose are hypothetical; they do not to our knowledge

describe actual cases.

The Farm Labor Contractor Registration Act requires "any person,

who, fo r a fee, either fo r himself or on behalf of another person,

re c ru its , s o lic its , hires, furnishes, or transports migrant workers

. . , fo r agricultural employment" to register as a farm labor contra c to r. Thus, a "person" must re g iste r to engage in farm labor

contracting a c tiv itie s , unless one of the specific exemptions

>’ lis te d in Section 3(b) of the Act applies. The term "person" as

defined in Section 3(a) of the Act "includes any in d iv id u a l,

partnership, association, jo in t stock company, tru s t, or corporatio n ." The following numbered answers respond to your questions in

the order of your inquiry.

1 .(a) "Is the term 'migrant worker' used in FLCRA as the persons to

be protected lim ited in any way by where the worker has 'migrated'

or traveled from?"

No. The term "migrant worker" is not lim ited in any way by where

the.person has migrated or traveled from nor by whether he or she

has migrated at a ll. The term "migrant worker" must be interpreted

in accordance with the d e fin itio n provided in the Act.
Section 3(g) o f the Act (7 U.S.C. 2042(g)) provides:

The term "migrant worker" means an individual whose primary

employment is in agriculture, as defined in Section 3 (f)

of the Fair Labor Standards Act of 1938 (29 U.S.C. 2 0 3(f)),

or who performs agricultural labor, as defined in Section

3121(g) of the Internal Revenue Code of 1954 (26 U.S.C.

3121(g)), on a seasonal or other temporary basis.

Neither migration nor travel is included in the statutory d e fin itio n .

The le g is la tive history of the Act states that the farm laborers

included in th is d e fin itio n are "the migrants who travel from stateto-state along fa irly established patterns and those who liv e

permanently in the agricultural area where they~~work." (Emphasis

added, S. Rep. No. 93-1295, 93rd Cong. 2nd Sess., at p. 2; H.R. Rep.

No. 93-1493, 93rd Cong., 2nd Sess. 6 (1974).)

The Ninth C ircu it Court of Appeals found the d e fin itio n of "migrant

worker" to be "obviously a term of a rt, having no reference to

workers with migratory tendencies. O riginally defined in the Fair

Labor Standards Act, i t referred to a class {th e n / exempted from the

Act's coverage, and its broad d e fin itio n was supported by the

agricultural industry. The apparent in te n t of the Act herein is to

cover those excluded from the Fair Labor Standards Act." (Four cases

consolidated fo r appeal purposes: Marshall v. Coastal Growers

Association; Marshall v. M a tilija Growers Association; MarsliaTl v.

S&F Growers, and El Comite de Campesinos de S P Growers v. S P Growers

Association, 598 F.2nd 521, 9th C irc u it, 1979.)

In Marshall v. Point Sal Growers and Packers, Ninth C irc u it, 1979, 603

F.2d. 224, Point Sal contended "that i t does not employ 'migrant

workers' w ithin the meaning of the Act because its work force is

prim arily composed of local area residents who work in the GuadalupeSanta Maria area, either fo r Point Sal alone, or fo r the defendant

and other local growers, on a year-round basis." The Court of Appeals

rejected that contention and, referring to its decision in Coastal

Growers, cited above, reaffirmed that such employees are migrant

workers as defined in the Act.

1.(b) "Does FLCRA as amended in 1974 apply to a ll persons performing

the named year-round services fo r 'a ll agricultural employees' as

defined in the Fair Labor Standards Act, 29 U.S.C. Section 203(f),

even though a ll persons involved are employees of a farmer, liv e

year-round on the farmer's farm, and work solely fo r that farmer?"
149

Section 3(b) provides that the Act covers farm labor contracting performed with respect to "migrant workers" (as th is term

is discussed in answer to 1(a) above) who are to be engaged

in or who engage in "agricultural employment" as defined in

Section 3(d).

The statutory d e fin ition s make i t clear that coverage of the

Act does not depend upon whether the persons who engage in

farm labor contracting perform such services the year round

nor upon whether they liv e on the farmer's farm. Neither

year-round employment nor residence on a farmer's farm is

specified in Section 3 of the Act as a c rite rio n fo r exclusion

from the application of the Act.

The employment of a fu ll-tim e or regular employee by a farmer

in farm labor contracting a c tiv itie s solely fo r the farmer

may q u a lify the employee fo r the exemption provided by

Section 3(b)(3) of the Act i f the farm labor contracting

a c tiv itie s are engaged in by the employee on no more than an

incidental basis. The application of th is exemption is

discussed in some detail in many of the following answers to

your questions.

2 .(a) "Is the term 'migrant worker' as used in FLCRA to

describe the persons to be protected by the Act lim ited to

seasonal or temporary workers?"

No. As discussed in the reply to question 1(a), the term

"migrant worker" as used in the Act to describe a person

intended to be protected is not lim ited to seasonal or

temporary workers. I t cle a rly protects individuals whose

primary employment is in agriculture as well as persons in

year-round agricultural employment. (Marshall v. Coastal

Growers and Marshal 1 v. Point Sal Growers and Packers,

supra.)

2.(b) "Does the phrase 'on a seasonal or other temporary

basis' in 7 U.S.C. Section 2042(g) modify and lim it the

d e fin itio n of agricultural employees in 29 U.S.C. Section

203(f), or do you interpret said phrase to lim it only the

d e fin itio n in 26 U.S.C. Section 3121(g)?"
150

The phrase "on a seasonal or other temporary basis"

refers to agricultural employment as defined in both

29 U.S.C. 203(f) and in 26 U.S.C. 3121(g).- Both of

these sections of the U.S. Code define agricultural

employment fo r purposes of employment on a seasonal

or other temporary basis as well as in connection

with primary employment.

The term "primary employment," as used in the d e fin itio n of "migrant workers," is intended to include any

person whose ch ie f, p rin cip a l, or main occupation is

in agriculture. Accordingly, "primary employment"

includes employment which is contemplated to continue

in d e fin ite ly . However, a person is a "migrant worker,"

regardless of primary employment, i f he or she is

employed in agriculture on a seasonal or other

temporary basis.

3. "As a result of your answers to questions 1 and 2

above, do you conclude that FLCRA requires re g is tra ­

tio n fo r a ll farmers' employees who regularly perform

the specified a c tiv itie s with respect to a ll American

farm workers?"

Our answers to questions 1 and 2 make i t clear that the

Farm Labor Contractor Registration Act requires

registration and compliance with its provisions by any

person defined as a farm labor contractor unless subject

to a specific statutory exemption as provided in

Sections 3(b)(1) through 3(b)(10).

4. You ask about persons who engage in farm labor

contracting a c tiv itie s solely with respect to B ritis h

West Indian cane cutters who enter the United States

under the "H-2" program pursuant to a contract or

contracts with the B ritis h West Indies Central Labour

Organisation.
151

Section 3(b)(5)(B) provides an exemption from the Act to those

persons whose farm labor contracting a c tiv itie s involve only obtaining foreign migrant workers whose employment is subject to w ritten

employment contracts that have been executed pursuant to the terms 

of an "arrangement" with the Government o f a foreign nation. The

"arrangement" envisaged by section 3(b)(5)(B) c le a rly contemplates

the contract'w ith the B ritis h West Indies Central Labor Organisation,

an e n tity established as the agent of the several governments,

including, in te r a lia , Granada; St. Lucia; St. Vincent, and Jamaica.

This organization is charged with overseeing the general welfare of

the foreign workers in the United States, including the negotiation

of employment contracts with growers, as these contracts control the

* terms and conditions of the employment of the foreign workers. Thus,

the enforcement o f the employment contracts is the re sp o n s ib ility of

the organization as the agent of the several B ritis h West Indian

Governments. This agency, in turn, w ill perform its assigned duties

*

through and with the assistance and o ffice s o f a United States agency

designated fo r th is purpose.

This exemption applies only to those persons whose farm labor contrac ting a c tiv itie s are concerned exclusively with "obtaining" the

foreign workers covered by the "arrangement" and employment contracts

made thereunder.

5. You ask about the a p p lic a b ility of section 3(b)(5) to a person

who drives a bus daily to transport H-2 cane cutters. That section

exempts from the Act a "person who-engages in /farm labor contracting/ a c tiv itie s fo r the purpose of obtaining migrant workers of any

foreign nation . . . The bus d river is not engaged in "obtaining"

these workers; they have been "obtained" p rio r to th is d a ily transporting. Thus, section 3(b)(5) is not applicable, and such a driver

must register unless some other statutory exemption applies.

6(a). This question concerns the a p p lic a b ility o f the Act to a yearround tra c to r driver^ A year-round tra c to r driver transports himself

and four other farm employees between home and work each day fo r about

one hour per day on a truck provided by the farm er.' This does not

appear to be carpooling arranged by the workers themselves, since the

farmer's truck is being used. The use o f the farmer's truck and/or

the pay fo r driving would constitute a fee fo r th is transporting

a c tiv ity . See 29 CFR 41.5. The d river is engaging in a farm labor

contracting a c tiv ity -tra n s p o rtin g —and is covered by the Act. But

the driver would be exempt under section 3(b)(3) of the Act i f the

transporting a c tiv ity and any other farm labor contractor type

* a c tiv itie s do not constitute more than an incidental part of his

employment.
To be e n title d to the exemption provided by section 3 (b)(3), a person

must (1) be an employee of a farmer or other person referred to in

sections 3(b)(1) or 3(b)(2); (2) be a fu ll-tim e or regular employee

of such person; (3) engage in any of the covered farm labor contracting a c tiv itie s referred to in section 3(b) solely fo r that employer;

and (4) participate in such a c tiv itie s "on no more than an incidental

basis."

The phrase "on no more than an incidental basis" is not defined by

the Act. The le g is la tiv e history makes i t clear that i t was the

intent of Congress that only those fu ll-tim e or regular employees

who u tiliz e only a lim ited portion of th e ir time fo r farm labor contracting a c tiv itie s could q u alify fo r the exemption under section

3(b)(3). As stated on pages 7 and 8 of the Senate Report No. 93-1295:

", . . While employment relationships vary, i t is the Committee's

in te n t that foremen and sim ilar bona fid e employees w ill not have to

register as farm labor contractors i f i t can be shown, fo r example,

that they are fu ll-tim e and permanent employees of an employer who

u tiliz e s a lim ited portion of th e ir time fo r a c tiv itie s as defined

in section 3(b) of the Act."

We have adopted an interpretation that any fu ll-tim e or regular

employee of a farmer, processor, canner, ginner, packing shed operator

or nurseryman who does not spend more than 20 percent o f the time in

farm labor contracting a c tiv itie s is performing on no more than an

incidental basis and is exempt from the Act provided such farm labor

contracting a c tiv itie s are performed solely fo r his employer.

Accordingly, the tra c to r driver in th is question would q ualify fo r

the exemption provided by section 3(b)(3) of the Act i f a ll four of

the tests specified in the Act are met and the driving duties of one

hour per day do not exceed 20 percent of the time.

6(b). The above principles apply i f a ll fiv e tra c to r drivers share

in the d riving. None would need to register where a ll of the

c rite ria fo r the exemption are met.

6(c). Where a ll of the persons q u alify fo r a statutory exemption,

the truck need not be registered and insured under the Act.

7(a). Three workers ride in a truck on public roads to pick up a

load of tomato stakes at one fie ld and take them to another fie ld ten

miles away where they unload the stakes. All three workers then

return to the yard fo r th e ir next assignment, which is to pick up a

load of crated vegetables at a fie ld and take i t to a packing shed.

Again a ll three workers ride the truck, load i t and unload i t . Such

duties are a regular and continual part o f th e ir employment by the

farmer; and they perform such duties solely in connection with the

farmer's farming operations. You ask whether the truck driver must

register himself and the truck.
153

The answer to th is question is based on the principles stated in the

answer to question number 6. The workers are being transported from

worksite to worksite and thus are being transported fo r agricultural

employment within the meaning of the Act. The d rive r of the truck

would q u alify fo r the exemption provided by section 3(b)(3) of the

Act i f a ll four o f the tests specified in the Act are met. From the

facts you give, i t cannot be determined whether his driving duties

would exceed 20 percent of the time.

7(b). The above principles apply i f the three workers alternate as

drivers. Whether they are required to register would be determined

by whether the c rite ria fo r exemption are met.

8. The driving duties in th is question involve two mess hall workers

employed by a farmer during the five-month harvest period each year.

These workers prepare the noon meal, load i t on a truck, get on the

truck, drive fiv e miles on a public road to a fie ld where a crew of

harvesters are working. After delivering the food, the two workers

return to the labor camp and complete th e ir duties in the camp.

The driving duties involve one hour each day. You ask whether the

drivers and the truck must be registered.

No one is required to re gister. The requirement under section 3(b)

is fo r transporting migrant workers. We in te rp re t "workers" to

mean at least two in addition to the drive r.

9. A d river of a tra c to r which pulls a harvesting machine on which

other employees of the farmer work while harvesting the farmer's

crops is not "transporting" w ithin the meaning of the FLCRA. Thus,

the employee driver need not re gister.

10. This question concerns driving duties in transporting workers.

These driving duties are assigned as necessary to several re lia b le

members of the harvest crew, each of whom drives the farmer's truck

which is furnished to the foreman. Each drives fo r the purpose of

transporting workers about once a week or approximately 20 times in

each 20-week harvest season.

The answer to th is question is based on the principles stated in

the answer to question number 6. These drivers would q u a lify fo r

the exemption provided by section 3(b)(3) of the Act i f a ll four

of the specified statutory tests are met. I t is not clear that the

drivers in question are fu ll-tim e or regular employees. The driving

duties appear to occupy less than 20 percent of the time.

11. This question concerns a farmer's fie ld foreman who is furnished

a truck to transport only himself to and from work. The Act does not

cover th is s ituation. Since no other employees of the farmer are

transported, the fie ld foreman need not regis ter.
12; A fie ld foreman employed fu ll-tim e year-round by the fanner

hires workers who come in div idually to the fie ld seeking employment

as pickers. These hiring a c tiv itie s involve about.15 minutes each

morning. The foreman is paid a salary by the farmer; his primary

duties are supervising and coordinating the work. A ll the workers

hired become the employees of the farmer. Neither the foreman nor

any other employee of the farmer does any re c ru itin g , s o lic itin g , or

transporting of agricultural workers. You ask whether th is foreman

must register as a farm labor contractor. Senate Report 93-1295, at

page 2, discusses the duties o f a farm labor contractor: "Although

the specific functions of the farm labor contractor, often called a

'crew leader' or 'crew pusher', might vary from job to job, his role

essentially remains the same—a bridge between the operator and the

worker. In many instances, the contractor is not only the re c ru ite r,

h ire r, and transporter, but acts as the supervisor, foreman, and paymaster as w ell. In addition, the contractor frequently controls

housing and other v ita l aspects of the workers' everyday needs."

I t is the Department's conclusion that, i f a fu ll-tim e or regular

employee of a farmer re c ru its , hires, s o lic its , furnishes, or transports migrant workers and spends more than 20 percent o f his or her

work time in these a c tiv itie s , he or she is performing farm labor

contracting a c tiv itie s on more than an incidental basis and is not

exempted by Section 3(b)(3). In relation to the employee's farm

labor contracting a c tiv itie s , such employee may also engage in

supervising migrant workers, acting as th e ir foreman or paymaster,

or supervising or controlling th e ir housing. In such cases the time

spent engaged in such related duties is counted as farm labor contracting a c tiv ity in determining whether the 20 percent standard is

exceeded.

13. "A farmer is in his fie ld and sees that there are too few harvest

workers. He te lls his foreman, who is his fu ll-tim e year-round

employee, "Tell the workers to put out the word that we are hiring more

pickers." The foreman, pursuant to th is in s tru c tio n , te lls the

workers, "We need more pickers. Tell your friends we are hiring

pickers to jo in th is crew." The pickers pursuant to this instruction

do advise th e ir re la tive s , friends, neighbors of the employment opportu n ity . As a re su lt of such advice, some of these persons do come to

the farmer's employment o ffice the next day and hire on as pickeremployees of the farmer. This is a regular and recurring process 

throughout the year, (a) Must the farmer register? (b) Must the foreman register? (c) Must the pickers who so lic ite d and recruited

register?"
We would not assert that the Act applies to the foreman in the situatio n you describe i f a ll the foreman does is to advise workers on the

farm to te ll others of job opportunities. S im ila rly, the farmer is

not required to register based solely upon the a c tiv itie s you describe

in which the foreman is engaged. Our response does not address the

a c tiv itie s of the farmer's employment o ffic e since your question does

not describe its operation. Also, the pickers would not be required

to register as a re su lt of advising th e ir friends and relatives of

employment opportunities.

14(a). Engaging in farm labor contracting a c tiv itie s through the State

Employment Services is discussed in the attached Opinion Letter WH-487

dated May 18, 1979. In accordance with that le tte r, the Wage and Hour

Division w ill not impute to the personnel manager the actions of the

State Employment Services. Developing lines of communication by

placing newspaper and radio help wanted ads, however, does constitute

farm labor contracting w ithin the meaning of the Act. Such a c tiv itie s

are treated in the attached Wage-Hour Opinion Letter No. 434 dated

October 17, 1977. The farmer in your example has a personnel manager

whose fu ll-tim e job and principal duty consists o f placing these

advertisements and supervising those employees who re c ru it and hire.

Your le tte r does not indicate any facts which suggest the application of

any statutory exemption. The following registration options apply where

there is no statutory exemption. S p e c ifica lly , a farmer whose a c tiv itie s

are covered and not exempt has the following options:

1. The farmer may register as farm labor contractor under

Section 4(a) and have each of his or her fu ll-tim e or

regular employees who engage in any farm labor contracting a c tiv ity register either as a farm labor

contractor under Section 4(a) or as the employee of a

registered farm labor contractor under Section 4(b),

unless otherwise s p e c ific a lly exempt; or

2. Perform his or her farm labor contacting a c tiv itie s only

through registered farm labor contractors and th e ir

registered fu ll-tim e or regular employees.

14(b). Jones' work is covered and not subject to any statutory exemption

The registration options which are discussed above are applicable.

14(c). A bus brings some fo rty workers to a grower's personnel o ffic e .

The workers go in d iv id u a lly to the hiring window, where some of them

are hired. The bus then departs, carrying away those who were not

hired. At the end of the day, the same bus returns to pick up those

workers i t had brought who were hired. Although the grower had advertised fo r workers, i t had made no arrangement with any person to bring

workers to the farm.
156

Under these circumstances, there may be a farm labor contractor

relationship between the workers and the labor contractor i f he is

transporting and furnishing them fo r a fee paid by the workers,

regardless of whether a fee is paid by the farmer to the labor

contractor. I f such a labor contractor were not engaged by the

fanner to supply farm labor through an express or implied understanding or contract, there would be no statutory obligation on the farmer

under section 4(c) of the Act. I f there is a covered farm labor

contractor relationship between the workers and the labor contractor

and no statutory exemption applies, the contractor would have to

comply with a ll sections of the Act and regulations applicable to

the contractor-worker relationship.

I f there are circumstances other than those stated in your question

which connect the farmer with the operator of the bus, there could

be engagement of the services of a farm labor contractor by the

farmer. Section 4(c) of the Act, which establishes the obligation

o f a person to engage only a qualified registered contractor, refers

to a person who engages the services o f a farm labor contractor to

supply farm labor. In no case need the farmer register as a farm

labor contractor.

15. You ask us to assume the same facts as in question 14(c) above

except that the bus delivering the workers is recognized as the bus

of a well-known crew leader.

See our answer under 14(c) above. The facts of any such situation

found by the Department w ill be fu lly investigated to ascertain

whether there are circumstances which connect the farmer with the

farm labor contractor.

16. You ask that we assumethe same facts as in question 15 above

except that the labor contractor is hired by the farmer as a tractor

driver.

This is a question of fact which would be fu lly investigated i f found

by the Department, as discussed above in replies 14(c) and 15. Since

these facts indicate a connection between the farmer and the labor

contractor, the Department would necessarily have a duty to explore

whether such relationship in fact included the engaging of the

services of a farm labor contractor to supply farm laborers w ithin

the ambit of section 4(c). Questions 14(c), 15 and 16 appear to

explore the lim its of section 4(c) of the Act through carefully

structured hypotheses and do not relate to any conditions we have

found.
157

17(a). This question concerns the driver of a truck sent by a farmer

each day fo r a four month season to the county seat to pick up

workers and return them each evening. The workers are picked up at

a well-known gathering place sponsored by the State Employment

Services where workers gather to sell th e ir services.

The driver of the truck is engaging in a ll the named farm labor contracting a c tiv itie s and is covered by the Act. H e is exempt, however, i f

these duties plus any other farm labor contracting a c tiv itie s which

he may engage in do not take more than 20 percent of his time. To be

e n title d to the exemption provided by Section 3(b)(3), the d rive r must

meet a ll four tests discussed in our reply to question 6. The facts

w you give do not make i t clear whether the driver is a fu ll-tim e or

regular employee o f the farmer and whether the driver engages in

farm labor contracting solely fo r that employer. Nor is there any

indication as to whether the d riv e r's farm labor contracting a c tiv ­

itie s would constitute less than 20 percent of the time. I t appears

* that the driver also re c ru its , s o lic its , hires, transports, and

furnishes the workers. In such case i f the driver is also th e ir

supervisor, foreman or paymaster, the c rite ria discussed in our

answer to question 12 would apply. I f the driver is exempt a fte r

applying a ll the statutory tests, then the truck would not have to

be insured and registered provided i t is fo r the purpose of supplying workers solely fo r the .farmer's own operations.

17(b). This question concerns whether the insurance requirements of

FLCRA apply where there is State workers compensation.

I t is necessary to maintain the FLCRA insurance wherever the Act

applies. The assumption on which you have based your example cannot

be made. The Farm Labor Contractor Automobile L ia b ility C e rtifica te

of Insurance c e rtifie s that the policy of insurance which has been

issued includes a Farm Labor Contractor L ia b ility Endorsement

approved by the Department of Labor. Such Endorsement prohibits the

application of exclusion (c) to bodily in ju ry sustained by any

migrant agricultural worker. In other words, FLCRA prohibits

Workers' Compensation from being the exclusive remedy. In the

p a rticu la r situation you cite d , Workers' Compensation may or may not

provide minimum compensation a v a ila b ility which is at least equal to

that provided by FLCRA. Once a C e rtifica te of Registration is issued,

the farm labor contractor may operate in any State in accordance with

the terms of issuance lis te d on his c e rtific a te . For example, the

card w ill either grant or deny authorization fo r the holder to transport workers and w ill re s tric t such transportation to p a rticular

. vehicles, which w ill be lis te d on the Transportation Authorization

Supplement. I t does not, however, lim it the use of the lis te d

6 8 -6 4 3 0 - 8 0 - 1 1
158

vehicles to any given lo c a lity . I f the Workers' Compensation did

meet the minimum lim its required, and i f the contractor transported

workers only when the Workers' Compensation would be applicable,

there would s t i l l be no guarantee that at any given time he would

not receive a job o ffe r which would take him out of the State.

Therefore, consistent national standards must be met.

18. Four agricultural workers arrange to come to work each day in

the car of one o f them. Each of the three passengers pays $2.00 per

day fo r the rid e , cle a rly in excess of a pro rata share o f the cost

of operating the car. The car's owner has nothing to do with

s o lic itin g , re c ru itin g , or hiring his three passengers as employees

of the farmer, and neither the farmer nor his agents have anything

to do with the transportation arrangement. All four are employed as

agricultural tra c to r drivers by the farmer; a ll four receive the

same wage rate. The Department of Labor does not intend to use its

lim ited Farm Labor Contractor Registration Act resources in in v e s tigations of such situations.

19. "The employer recruits agricultural workers through interstate

United States Employment Service job orders. Pursuant to agreement

with the Department of Labor, the employer w ill advance a prepaid

bus tic k e t to workers who w ill come to Florida to cut sugar cane.

Four workers arrive at the Nashville, Tennessee Employment Service

Office and say they w ill cut sugar cane. The Employment Service

representative, pursuant to the job order, ca lls the fanner's

personnel o ffic e to obtain the prepaid bus tic ke ts but also mentions

that one of the workers has a car and a ll four of the workers desire

to come to Florida in that car. The Employment Service o ffic e r asks

whether the farmer w ill agree to pay the car owner the equivalent of

four bus tic ke ts to cover his car expense, payable when the workers

arrive at the farm in Florida."

Assuming these to be the facts you ask the following questions:

"(a) I f the farmer's personnel representative agrees to th is proposal, does the farmer-employer thereby assume any obligation under

FLCRA?"

No, the farmer-employer assumes no obligation under FLCRA.

"(b) Does the farmer's personnel representative assume any additional

obligation as a re su lt of th is transaction?"

No, the farmer's personnel representative does not assume any

additional obligation under FLCRA as a re su lt of th is transaction.
159

"(c ) Does the car owner-driver have an obligation under FLCRA as a

re su lt of th is single isolated transaction?"

No, the car owner-driver has no obligation under FLCRA as a result

o f th is single transaction.

"(d) Does the farmer or his personal representative escape an o b ligation under FLCRA to have the d river and the vehicle registered and

properly insured i f the personnel representative responds to the

Employment Service inquiry, 'Tell the workers we w ill prepay bus

transportation but we w ill not pay fo r any other kind of transportatio n ,' but he knows they are driving the car to Florida to accept

the jobs in reliance on the ES job order?"

No, based on these fa c ts , there is no obligation on the fanner fo r

the d rive r or the vehicle to be registered under FLCRA.

20. and 21. You ask about the meaning of Section 3(b)(3) in terms

o f specific guidelines, including a percentage te s t, fo r the applica

tio n o f th is provision.

We have answered questions 20 and 21 in the preceding replies,

especially, 1n the answers to questions 6 and 12. As a re su lt of

the experience we have gained in the administration of the Act,

we have adopted the percentage te s t discussed in the preceding

answers. Our position on the application o f Section 3(b)(3) is

restated here.

We have adopted the interpretation that any fu ll-tim e or regular

employee o f a farmer, processor, canner, ginner, packing shed

operator, or nurseryman who does not spend more than 20 percent of

his or her work time in farm labor contracting a c tiv itie s is performing such a c tiv itie s on no more than an incidental basis and is

exempt.

Farm labor contracting a c tiv itie s are re c ru itin g , s o lic itin g ,

h irin g , furnishing, and transporting migrant workers and may

include certain related duties. As part of these farm labor contracting a c tiv itie s , such employees may engage in supervising

migrant workers, acting as th e ir foreman or paymaster, or supervising or controlling th e ir housing. In such cases, the time spent

in such related duties would be counted as farm labor contracting

a c tiv ity in determining whether the 20 percent standard is

exceeded.

161

Mr. Butler. Here again, in your response, perhaps the use of the

word “regulations” was not altogether accurate, hut are you satisfied, 

that you have kept the industry advised of your thinking with reference to the various aspects of this? I think that is basically the

problem.

Mr. Berrington. Yes, sir, we have tried.

I think the industry’s basic concern—and I hesitate to speak for

Mr. Ellsworth—is less with not being kept informed, although there

are certainly areas where perhaps we need to do that more, but a basic

disagreement over what the law means.

Mr. Butler. I suspect that is part of it.

Let us get back to one other question. We talked about consent judgments. It was the complaint of the earlier witnesses that these are not

effective. Would you like to comment on that?

Mr. Berrington. I would be glad to let the Associate Solicitor comment on that.

Mr. Butler. The question was: How effective are consent judgments

as enforcement tools ?

Mr. W hiting. Early on, or in 1976 at least, almost the whole thrust

of the litigation program was injunctive because, at that time, the civil

money penalty system has not been put into place. So, at the moment

I have to say that the thrust is certainly going to be on the side of the

administrative penalty system because it does seem to be more effective

in hitting people in their pocketbook. However, we did get a fair number of consent judgments. When we say consent, of course, that means

they were with the Federal district courts.

To the extent that we find followups again, we will start to put more

and more emphasis on going with contempt actions.

Of course, one problem with contempt actions is getting service of

process. When you have a contempt judgment, say, in South Carolina,

and the person is now operating in Maryland, we sometimes have

jurisdictional and service problems. But we will give more emphasis

to contempt where we have the past injunctions.

Mr. Butler. I s that a problem? Do they keep moving around on

you ?

Mr. W hiting. In many instances, certainly. There is a definite

stream that the migrant labor follows from Texas, Florida, California,

and so on. Oftentimes, the injunction will be in the one State, and their

operation the next time we find them will be in a different State.

Mr. Butler. But the injunctions prescribe violations of the act

anywhere.

Mr. W hiting. Yes; they do, but there are some legal questions on

whether they are districtwide or not.

W hat I am suggesting, basically, is that the civil money penaltv is

going to be the more effective thing, and we are goingto try to do that

on a more mass basis in terms of litigation through decentralization.

Mr. Butler. W hat do you view the role of the Legal Services Corporation to be in this?

Mr. Berrington. The Legal Services Corporation can represent individuals under the private right of action provisions of the act. In

addition, we are more than willing or anxious to get information from

any source, including the Legal Services Corporation, about any pos-
162

sible violations of the act, and will proceed with proper enforcement

activities once we receive them.

Mr. Butler. Thank you.

Thank you, Madam Chairwoman.

Mrs. Collins. Mr. Maguire ?

Mr. Maguire. Thank you, Madam Chairwoman.

Mr. Berrington, Mr. Carr in his written statement—and he referred

to the situation in general terms a few minutes ago—details the circumstances of the Westover labor camp, apparently the largest labor

camp operating in that area, in Somerset County, Md.

W hat can you tell us about the Westover labor camp and what the

Department of Labor knows about it and is doing or plans to do about

the conditions there ?

Mr. Berrington. I did not hear the statement earlier, and I cannot

give you a specific answer on that now, but we would be glad to provide

for the record that kind of information.

Mr. Maguire. Mr. Carr’s testimony indicates that the conditions

there have existed for some years. He cites very reliable persons who

indicate that the situation is worse now than it was 5 years ago.

Apparently there is a history of representation to the Department

about the conditions there.

I would appreciate it if you would furnish this subcommittee with

a full account of the Westover case from the Department of Labor’s

point of view.

Mr. Berrington. Yes. We will be happy to do so.

Mrs. Collins. Without objection, it will appear in the record at this

point.

[The material follows:]

The Wage and Hour Division has conducted numerous investigations over the

past years of farm labor contractors who utilize the Westover Labor Camp in

eastern Maryland. The Maryland Occupational Safety and Health Administration (MOSHA) operating under a Federal State agreement has inspected the

labor camp in prior years. During the 1979 harvest season, it is our understanding

that MOSHA issued a citation for labor camp safety and health violations and

assessed a civil money penalty against the Somerset Growers Association. Inc., 

owner of the camp. The penalty has been contested and a hearing will be

scheduled.

A recent investigation of the Somerset Growers Association. Inc. by the WageHour Division did not disclose any covered farm labor contracting activities at

that time. A reinvestigation will be scheduled at the time the camp is occupied

during the 1980 season.

Mr. Maguire. He also talks in his testimony about the case of a crew

leader named Wardell Williams who operates out of Florida and refers to the fact that the Florida Rural Legal Services Agency has filed

suit against him and has provided the Department of Labor with a

great deal of data with respect to possible violations of the criminal

provisions of FLCRA and other criminal statutes. Apparently, this

is a prime example of a repeat violator.

Mr. Berrington. My understanding is that an investigation is proceeding now.

Mr. Maguire. I would appreciate it if you would also give the subcommittee an account of where the case of Mr. Williams stands as far

as the Department is concerned.

Mr. Berrington. I would be glad to do that in outline form. I think,

however, it may not be appropriate from a law enforcement standpoint
163

to provide details. But we would be glad to bring you up to date on

that.

Mr. Maguire. I would appreciate whatever you can tell the subcommittee that would be consistent with your pursuit of the legal aspects

of the case.

Mrs. Collins. Without objection, it will appear in the record at this

point.

[The material follows:]

In response to a complaint filed by Florida Rural Legal Services with the Department against Farm Labor Contractor Wardell Williams, an investigation

was initiated in North Carolina in the 1979 fall harvest season. Violations of the

• Farm Labor Contractor Registration Act and the Fair Labor Standards Act were

found during the investigation. The file has been reviewed by our staff in Washington and is now being referred to the Regional Solicitor for appropriate legal

action. I cannot say precisely what type of legal action will be initiated, but

based upon Mr. Williams prior history, I expect that all available legal remedies

“ will be sought.

Mr. Maguire. In the case of Mr. Portalatin, apparently the investigation was supposed to have been closed at the Trenton regional office

in mid-August. It is now approaching mid-November. What is the

status of this case, particularly with respect to possible proceedings on

criminal charges ?

Mr. Berrington. The Department has referred the file to the Department of Justice for consideration of possible criminal action. The

Department of Labor has also taken administrative action, including

a $4,000 civil money penalty assessment, against Mr. Portalatin.

Mr. Maguire. Do you have any comment on the fact that the Baltimore area office of the wage and hour division closed an earlier

investigation of Mr. Portalatin’s activities by settling for a $60-perworker repayment by the Leonard Farms Corp, for excess travel

deductions but did not do anything more than that with respect

to the hours worked or any other conditions?

Mr. Berrington. I would have to look at the particular case file to

know whether that type of action at that stage was appropriate.

The Department was investigating Mr. Portalatin’s activities as a

farm labor contractor, and I want to emphasize that, because most of

the difficulties that were described come outside of the Farm Labor

Contractor Registration Act. But we have been investigating him; the

investigation of Mr. Portalatin began several months before the incident that was described here this morning. We have, from the administrative standpoint, in relation to Mr. Portalatin’s activities as a

farm labor contractor, brought to fruition that investigation, which

. includes, as I mentioned, the civil money penalty assessment and our

refusal to renew his registration for next year.

Mr. Maguire. Do you sense the frustration that some of us feel and

that representatives of the Legal Aid Services feel about this situation ? In the aggregate, your numbers are outrageously low as an indication of action under this law, and I think that emerges very clearly.

When specific examples come to the attention of the subcommittee,

such as those I have just mentioned, it seems as if nothing ever gets

done, and we are talking now about 15 years after the initial passage

of this law and 5years after it was strengthened.
164

I would like you to comment on the issue of how people who are

engaged in trying to protect people’s rights under this law must feel.

And perhaps you will tell me that you feel the same way; I hope you do.

But listen for a moment to this statement from Mr. Carr which is

included in his written testimony:

I could probably testify for many hours about other serious and repeat violators who have encountered my clients. Briefly, I am constrained to say that they

all continue in business and that if my present clients are correct, they continue

to engage in the same practices which brought them to my attention in the first

instance. Some of these individuals have been subjected to civil money penalties,

but I am unaware of any efforts taken by the Department to collect these

penalties.

Here is a man who has been working in this field for 4 years; others

have been working in this field for much longer, and, as I understand

it, can make statements which are pretty much the same about the general situation with respect to enforcement of the law.

What is to be done, Mr. Berrington ?

Mr. Berrington. When the chairwoman began the session this morning, she referred to Edward R. Murrow’s “Harvest of Shame,” I think

all of us who are concerned about working conditions for agricultural

labor share the frustration that was represented by that statement that

those conditions have not improved more since the Murrow program

of 1959 or 1960.

Agricultural labor has, historically, not received the same level of

protection as other labor in the United States.

Mr. Maguire. Which includes, I assume, a set of priorities within

your own Department. Does your statement apply to that?

Mr. Berrington. No. I want to get to that because, while conditions

have improved—some statutory improvements have been made in relation to agricultural labor—the only place in the Federal Government

where there is any real enforcement authority is in the Labor Department.

I cannot speak for what transpired prior to 2 ^ years ago, but I

know that within the last 2y2

years there have been tremendous efforts

and a reordering of priorities within the conflicting priorities we have,

a reordering of priorities to increase the amount of attention to this

area, especially under this law.

Mr. Maguire. OK.

On the top of page 10, you make two statements. You say, “Top

priority is given to identifying and investigating contractors who have

repeated serious violations of the act.” Yet, we have data which says

that of 5,708 compliance actions only 276 were followup investigations.

Mr. Berrington. That is a misreading of the data.

Mr. Maguire. It is a misreading of the data. How should they be

read ?

Mr. Berrington. That terminology for followup investigations

merely refers to going back to a particular farm labor contractor

within 12 months of a particular investigation. It has nothing to do

with followup actions on a farm labor contractor in subsequent years

or subsequent harvest seasons.

I apologize if the terminology which we use, and which we understand for our computer printout information, was inadequately conveyed. We do have a substantial followup in this area.
165

Mr. Maguire. But you do indicate that your statistical system is not

set up to collect data by repeat violators.

Mr. Berrington. That is correct, but we do have a system which is

set up to collect data on violators which is then printed out each month

and which is available to each compliance officer to utilize when the

compliance officer is in the field.

By comparing the information that the compliance officer finds in

the field with the information on this monthly tracer listing, assistance

can be provided for followup activity.

Mr. Maguire. If the percentage of repeat violators is in the range of,

I think you mentioned, 65 percent in your statement—and other estimates go as high as 75 percent—that says it all. does it not ?We are not

reaching the people who need to be reached to make sure that the law

is applied.

Mr. Berrington. I think the farm labor contractor community—

and I use that in the broad sense, which includes farmers who employ

agricultural labor—does not yet believe that this law is for real.

Mr. Maguire. That is a very interesting statement.

Mrs. Collins. Yes. Why do they not believe it?

Mr. Berrington. Because of the nature of the business, where they

can move around easily, be easily undetected.

Mrs. Collins. I s not the reason they do not take it serious that the

enforcement on the part of the Department has been so lax ?

Mr. Berrington. We are talking about stepped up enforcement over

the last 2y2

years. What that really means is the last two and a half

growing seasons. It will take efforts over a longer period of time than

that to make the law a reality, quite frankly, for many of these

employers. It will also take time for the litigation process to have

enough hard decisions through the courts to get the kind of compliance

that we all want to see.

Mr. Maguire. Are you telling the subcommittee that the very low

level of denials of registration, revocations of licenses, and so on,

which has been characteristic of the Department’s enforcement activities to date, are going to increase now as a result of your enhanced

enforcement efforts, and the number of referrals to administrative law

judges, and the number of criminal prosecutions, and so on, will

increase in the future ?

Mr. Berrington. I know that the number of referrals to administrative law judges is going to go up substantially and it has recently.

Mrs. Collins.Would the gentleman yield on that point?

Mr. Maguire. Surely.

Mrs. Collins. I am glad you say that number is going to increase,

but I am concerned because it is my understanding—and correct me if

I am wrong—Mr. Whiting, that there is already a backlog, and that

after these cases have been sitting around for a year or so, somebody

just throws them out anyway. So, I applaud your effort, but I want to

know what is going to happen.

Mr. Whiting. They will not be thrown out. They will be carefully

analyzed, and if there is supporting evidence they will go forward.

We do have a substantial backlog, and, as I said, we are in the

process of decentralizing. As I pointed, we are kind of at the end of the

pipeline. A lot of our backlog hit in late 1978 and in 1979, so those

cases, from a legal standpoint, are still relatively recent.
166

Mrs. Collins. How long do yon keep a case considered to be relatively recent, and when do you kick it out ?

Mr. Whiting. We do not have any kind of guideline on where the

case dies. After a certain period of time-----

Mrs. Collins. They just automaticaly die?

Mr. Whiting. No; it depends on the strength of the evidence, and

so forth.

As I indicated, we now have about 275 filed cases, and with the decentralization to the 15 regional offices, we would certainly anticipate

that both the speed of handling and the number of cases handled would

increase markedly within the next 6months.

Mrs. Collins. The gentleman has the time—

Mr. Maguire. Madam Chairwoman, I think your line of questioning is excellent.

Mrs. Collins.Then just let me ask one more question.

Why is it better for the Government to drop valid cases against

abusers because they have been on appeal for over a year ?That is my

understanding of what happens.

Mr. Whiting. I do not know of any cases that have been dropped

just because of that. If there were evidence problems, that would be

one thing. But we do not have any cutoff or guideline on that.

Mrs. Collins. Thank you.

I would return the time to the gentleman.

Mr. Maguire. Thank you, Madam Chairwoman.

How many people in the Solicitor’s Office are full time working on

the FLCA cases?

Mr. Whiting. That has been one of the problems, and that is why

we are going to decentralization. In fiscal year 1977-78, we had four

and a half attorneys. In fiscal year 1978-79, we had five and a half.

Mr. Maguire. Full time?

Mr. Whiting. Yes. But that includes supervisory time, and defensive actions, and appeal actions. We would guess that appeal actions

probably take 30 percent of that time. It has become apparent that,

given the resources we have available in Washington, we cannot handle

this kind of work.

Mr. Maguire. The subcommittee was reliably informed that there

was only one person working on new FLCRA cases in the Solicitor’s

Office. Is that not the case ?

Mr. Wn iT iN G . Not that I know of. I have no idea who so informed

you. But, as I indicated, the workload statistics of my office have indicated that we have utilized about 4 ^ years of attorneys’time in the

past. That, has increased to 5 ^ in the past year, primarily due to some

defensive lawsuits. But, as I said, you have to remember that that includes opinion work, appeal work, and all other kinds of work. We

admit that is not adequate; that is why we are in the process of decentralizing.

Mr. Maguire. The second thing I wanted to raise from the top of

page 10, Mr. Berrington, wasthe statement:

A system has been established for inter- and intraregional coordination for

the .situations where a contractor found to be in violation is moving into another

geographic area and a followup investigation is indicated.
167

On page 9 of Mr. Read’s testimony, he makes the following statement :

We discovered that the U.S. Department of Labor's fragmentation into different regions of area offices made effective coordination of an investigation

crossing different regional and area boundaries impossible.

That is recent—that is this year—with respect to the Portalatin case.

What comment do yon have on that juxtaposition of assertions ?

Mr. Berrington. The Department’s actions to gain coordination of

the program and to develop a tracer list which can be utilized from one

region to another have been recently implemented, within the last year

and a half.

Mr. Maguire. Presumably these were in effect, then, during the period of time which Mr. Read was talking about with respect to the

Portalatin matter.

Mr. Berrington. I would not want to speak for him. There are problems in tracing farm labor contractors who go from one State to another, often on vehicles that are not even licensed, and who have arrangements with farmers where it is to the benefit of both the contractor and the farmer not to report the presence of the farm labor contractor. Where it is very difficult to trace these matters, interregional

coordination is not an easy matter. It is a very, very difficult matter. We

will pursue any lead which any legal corporation will provide us for

dealing with these farm labor contractors that we are not aware of in

a particular location if they have information about them.

Mr. Maguire. How do you account for the fact that the U.S. Department of Labor office in Puerto Rico did not involve itself in the

followup with respect to the Portalatin matter? Or did they?

Mr. Berrington. I do not know the facts of that.

Mr. Maguire. Perhaps you could include something about that in

your report to the subcommittee—on the Portalatin matter.

Mr. Berrington. I would be glad to.

[The material follows:]

The Wage-Hour offices in Puerto Rico did not participate in the Jforcos Portalatin case. Investigations were conducted in Delaware and New Jersey. When 

Portalatin fled New’ Jersey for Puerto Rico after the stabbing incident, he was a

fugitive sought by the Federal Bureau of Investigation.

Mr. Maguire. I s it true that, prior to 1979, there have been only 18

cases involving criminal penalties that have been closed, and that most

of these resulted in a suspended $250 fine, and that there was only one

case where an individual was actually convicted to a jail term for

violation of FLCRA? Are those facts roughly correct?

Mr. W hiting. Prior to this year, we do not have the latest update,

but the statistics you quoted prior to this year were for 18 referred to

U.S. attorneys. Those are referred directly from our regional offices

to the various U.S. attorneys. There were seven indictments and convictions. I do not have a rundown of what the penalties imposed there

were. Two w’ere indicted in cases dismissed; there is one pending indictment; and there are seven submitted with no action in the U.S.

attorney’s office, one submitted that was rejected by the U.S. attorney.

But I do not have the latest statistics.

Mr. Maguire. I am always astonished. Madam Chairwoman, at the

number of times we have an agency testify liefore the subcommittee or
168

other subcommittees, telling us that they are just about to get on with

the job of administering the law.

I thank you very much.

Mrs. Collins. Thank you, very much.

Our time has just about run out. l e t me ask just one other question.

On page 13 of your testimony. Mr. Berrington, you say that you—

the Department of Labor—intend to increase the wage and hour enforcement efforts to let farm labor contractor know that if they violate

the act, there will be a very strong possibility that those violations

will be uncovered, and they will be subjected to the penalty provisions

of the act.

I would like to know’ when this will be an accurate statement; I do

not think it is accurate right now’.

Mr. Berrington. I think, to an increasing extent, it is accurate.

Mrs. Collins. Why? How can you say that?

Mr. Berrington. And I would like to respond to Congressman

Maguire on that, as well. You started out by asking, why do we do some

of the heavy activity in registration? One of the reasons that we do

heavy registration activity is to let the farm labor contractors know

that we are there, that there is a law’ to enforce, and that their presence

is knowm. It is not that the Employment Standards Administration

or the Labor Department is about to increase enforcement under this

act.

We have had a 66-percent increase in enforcement actions from 1978

to 1979. We have increased the budget for this activity by 60 to 70 percent over the last year, and we are increasing the amounts of civil

money penalty assessments to the Department.

We have much to do, and I would be the last one to tell you that we

do not. But it is not a matter of us starting at some time in the future;

it is part of the process of having moved this program up much higher

in the priority list than it had been in the past and getting it moving.

I think the data and the statistics show it, and I think the fact that

some farm organizations are so concerned about our activities show it

as well.

Mrs. Collins. Let me say that I appreciate the statistics which you

have just given us. I also appreciate the fact that these civil money

penalties have been going on for 5 years and that w’e do not have w’hat

I consider to be a serious decrease in the amount of abusive activity.

Mr. Maguire. Madam Chairwoman.

Mrs. Collins. Yes?

Mr. Maguire. Excuse me. T think one other figure is extremely important here. That is, budget positions were increased from 28 to 58

for compliance officers from fiscal 1978 to fiscal 1979. In fiscal 1979,

according to the data that DOL has given us, there was a planned

enforcement of the staff year level of 46.2. The actual enforcement of

the staff year was 21.1. In 1978, it was higher than that: it was 30.

So, in 1979, while we are going forw’ard with this wonderful increase

in the Department of Labor’s activities with respect to implementing

this law. we are nine enforcement staff years down from where w’e were

in the previous year, and just over a third of the budget provisions

that have been provided.

My understanding from staff is that for fiscal 1980, against those

58 budgeted positions, we are going to have something around 30 or
169

31. I wonder if it would not be useful to get a comment on that point

from the witnesses ?

Mrs. Collins. Mr. Berrington ?

Mr. Berrington. Yes. We did not hit our goal last year for the

amount of staff years.

Mr. Maguire. You did not anywhere near hit it.

Mrs. Collins.Why did you not hit it ?

Mr. Maguire. You were a half down from your goal. How can you

explain that, given what you are telling the subcommittee today that

your intentions are?

Mr. Berrington. The number of investigations that were done with

the staff years that were devoted went up very substantially. We have

looked at the allocations of staff from region to region; we have made

some reallocations within regions to get more of the compliance activities, more of the man years in agricultural areas where it is needed.

We are going to try to get that figure up, close to the goal.

Mr. Maguire. Why is your goal 12 positions below what the Congress has provided ?

Mr. Berrington.I do not believe that is correct.

Mr. Maguire. That is what you have given us.

Mr. Berrington. No, the budgeted positions are different from the

enforcement staff years. I have some experts who can explain that.

Mr. Maguire. All right. I accept that. Give it to us in the small

print.

Mrs. Collins. Without objection, that will be included in the record

at this point.

[The material follows:]

In FY 1979 the 58 budgeted positions represented the total available compliance officer positions. After deducting time for annual leave, sick leave, training, travel and other administrative activities, the 58 budgeted postions were

converted to 46 planned enforcement staff years. Thirty-two staff years were

actually expended in FLCRA enforcement. Thus, we actually achieved almost

70 percent of the plan in terms of staff years expended. However, as I previously

indicated, the number of investigations conducted actually increased each year

since the Act was amended in 1974.

Mr. Maguire. When are you going to reach the planned enforcement level ? You are not going to reach it in 1980—right ? When are

you going to reach it ?

Mr. Berrington.I think we will reach it in 1980.

Mr. Maguire. During this fiscal year?

Mr. Berrington. Yes, sir.

Mr. Maguire. You will be at 46.2 planned enforcement staff years?

Mr. Berrington. Yes, sir.

Mr. Maguire. That is encouraging.

Mrs. Collins.We will see.

[Correspondence relative to the above paragraphs follow:]
170

U.S. DEPARTMENT OF LABOR

Of f ic e of the Assista n t S ecreta ry for Employment Standards

WASHINGTON, D.C. 20210

M 3 0 H 0

Mr. Richard E. Grawey

Counsel *

Manpower and Housing Subcommittee

Committee on Government Operations

U.S. House of Representatives

Washington, D.C. 20515

Dear Mr. Grawey:

Thank you for your recent letter requesting information

concerning matters related to my November 13, 1979,

testimony on Employment Standards Administration's

enforcement of the Farm Labor Contractor Registration

Act (FLCRA).

As indicated in your letter, during my appearance

before the Subcommittee there was a discussion about

the disparity between planned and actual enforcement

staff years under the FLCRA. You now ask for that

data for the first half of Fiscal Year 1980. Planned

enforcement staff years for this period were 17.7.

Actual enforcement staff years were 12.8. The

temporary fall back from planned enforcement staffyears was due primarily to efforts to complete the

noncompliance survey designed to measure the level

of compliance with the Fair Labor Standards Act.

The survey was conducted by the Wage-Hour compliance

staff for the Minimum Wage Study Commission. As the

noncompliance survey was being completed, we redirected the field enforcement staff reemphasizing that

they must now work on meeting our FLCRA objectives

for Fiscal Year 1980. Accordingly, we moved closer 

to meeting the plan in the second quarter of the

fiscal year. This activity is now being closely •

directed and monitored.

We have implemented the settlement order in NAACP v.

Marshall. (Two copies of that order are enclosed per

your request.) To comply with the order we published *

final regulations on June 10, 1980. Copies of the

final regulations are enclosed.
171

The Wage and Hour Division has also prepared

instructions for implementation of an action log

system in each of its area offices. The log procedures have been coordinated with OSHA and ETA

to insure that all the required data will be

maintained and exchanged as required by the regulations. The Employment Standards Administration

has identified the 23 locations for farm labor

specialists and 20 have been selected— the number 

specified in the agreement. The statistical system required for compliance with the regulation

has been implemented and the Regional Farm Labor 

Coordinated Enforcement Committees have been

established and are functioning in all 10

Department of Labor regions.

I believe that with the farm labor specialists on 

board, the implementation of the regulations, and

most importantly, the completion of the FLSA noncompliance survey, the level of enforcement activity

will increase under FLCRA during the second half of

the fiscal year. If I can be of further assistance, 

please do not hesitate to contact me.

Sincerely

Enclosures
172

Mr. Whiting and Air. Williams, it may be necessary, after further

reading of your testimony, to ask you to come back again. I am sorry that I did not get a chance to get into some questions today about this

housing. I wanted to raise some questions about whether OSHA—and

I am sure it is—is aware of housing that looks like this.

[Shows photographs.]

Mrs. Collins. This picture is one of two outhouses. The second picture is of another. I understand that the bucket in this second picture

is the receptacle that is used for the elimination of body wastes. I certainly have some questions to ask about that, but unfortunately the time for our hearing has drawn to an end.

Just let me say, in closing, that it appears that the enforcement of

the Farm Labor Contractor Registration Act has been a low priority

in the Department of Labor. I think this is reflected in the number of

persons assigned to investigate, enforce, levy penalties, and try the

cases. In fact, the act has become, or at least is right now, a toothless

tiger. The Department apparently does not know where all the labor

camps are located nor which crewleaders are operating in what areas.

Repeat violators continue to recruit, hire, and transport migrant

workers. Civil money penalties are assessed, but I do not think they are

ever collected. Appeals are requested by violators, but the appeals are

never heard, leaving the violator to again recruit and to continue to

violate the law.

I hope that the next time you are here this will not be the report

that we hear. We are going to look at the further information you are

going to send us and prepare our report from that information. I do

hope, however, that when these hearings continue, we will have a lot

better information when you come before us again.

Thank you very much. This hearing is adjourned. [Messrs. Berrington’s, Whiting’s, and Williams’ prepared statements follow:]
173

STATEMENT OF CRAIG BSRRINGTON

DEPUTY ASSISTANT SECRETARY OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION

U.S. DEPARTMENT OF LABOR

BEFORE THE

SUBCOMMITTEE ON MANPOWER AND HOUSING

COMMITTEE ON GOVERNMENT OPERATIONS

U.S. HOUSE OF REPRESENTATIVES

November 13, 1979

Madam Chairwoman and Members of the Subcommittee:

Thank you fo r the o p p o rtu n ity to appear b e fo re

your Subcommittee today to d is c u ss the Department of

L ab o r's a d m in istr a tio n and enforcem ent of programs

r e l a tin g to farm w orkers. I am accompanied here today

by David W illiam s, A dm in istra to r of the U nited S ta te s

Employment S e rv ic e (USES) of the Employment and T ra in ­

ing A dm in istra tio n (ETA) and B a sil W hiting, Deputy

A ssistan t; S e c r e ta ry of the O c cu p a tio n a l S a fe ty and

H ealth A dm in istra tio n (OSHA).

F irs t, I want to st a t e th a t in the p a st two and

o n e -h a lf y e a rs, th is A dm in istra tio n has given h ig h -

p ri o rit y to improving the working c o n d itio n s of

the N a tio n 's farm w orkers. This has been p a rt of the

o v e r a ll p o lic y to stre n g th e n the economy and improve

liv in g c o n d itio n s fo r people in r u r a l a r e a s. We have

68-643 0 - 8 0 - 1 2
174

ta k e n st e p s to improve th e d e liv e r y o f s e r v i c e s, b en e ­

f i t s , and p r o t e c ti o n s to which fa rm w orke rs a r e e n t i t l e d

under th e v a rio u s laws a d m in iste r e d by th e D epartm ent

o f Labor. My A ss o c ia te s and I w ill be d is c u ssin g th e

a c tio n s we have ta k e n in t h is r e g a r d .

I w ish to g iv e your Subcom m ittee a b r i e f o v e rv iew

o f D epartm ent o f Labor program s a ff e c ti n g m ig ra n t and

s e a s o n a l fa rm w o rk e rs. The Employment S ta n d a rd s Adminis tr a t i o n (ESA) is r e s p o n sib le fo r a d m in istr a tio n and

e n fo rc em en t o f th e Farm Labor C o n tr a c to r R e g istr a tio n

Act (FLCRA). The FLCRA is d e sig n e d to p r o t e c t a g r ic u l t u r a l w o rk e rs in t h e ir r e l a ti o n s h i p s w ith farm la b o r

c o n tr a c t o rs. The O c c u p a tio n a l S a f e ty and H e a lth Adminis tr a t i o n is r e s p o n sib le fo r a d m in istr a tio n and e n f o r c e ­

ment o f th e O c c u p a tio n a l S a f e ty and H e a lth A c t, which

e st a b lis h e s sta n d a r d s fo r s a f e and h e a lt h f u l employment

c o n d itio n s, in c lu d in g th o s e fo r fa rm w o rk e rs. The Employment and T r a in in g A d m in istr a tio n a d m in iste rs th e W agnerP ey se r Act which e st a b lis h e s th e F e d e r a l- S t a t e Employment S e rv ic e sy stem .
175

The D epartm ent r e c o g n iz e s th e im p o rta n c e o f c o o r d in a tio n among th e a g e n c ie s w ith r e s p o n s i b i l i t i e s r e l a t ­

ing to farm w orke rs if i t is to e f f e c t i v e l y d e liv e r

s e r v i c e s and b e n e fits to th e s e w o rk e rs. Task f o r c e s

have been e st a b lis h e d to d e a l w ith s p e c ifi c pro b lem s

r e l a ti n g to c o o r d in a tio n o f m a tte rs which c u t a c r o ss

agency l i n e s . H ousing in s p e c tio n , which h a s been a

m ajor fo cu s o f th e s e e f f o r ts , is a good exam ple.

Three a g e n c ie s in th e D epartm ent have r e s p o n sib i l i t i e s fo r in s p e c tin g fa rm w o rk e rs' h o u sin g . As a

c o n d itio n fo r a c c e p tin g i n t e rs t a t e c l e a r a n c e o r d e rs

fo r r e c r u itm e n t o f w o rk e rs, th e Employment and T r a in in g

A d m in istr a tio n c o n d u c ts p reo c cu p an cy in s p e c tio n s of

tem p o ra ry farm w orker h o u sin g a s p a r t o f i ts Job S e rv ic e f u n c tio n s under th e W agner-Peyser A c t. The Occup a ti o n a l S a f e ty and H e a lth A d m in istr a tio n h a s p rim a ry

j u r is d i c t i o n to in s p e c t and e n fo r c e th e m ig ra n t h o u sin g

sta n d a r d s in o c c u p ie d tem p o ra ry la b o r camps o r camps

which w ill im m in en tly be o c c u p ie d ; and th e Employment

S ta n d a rd s A d m in istr a tio n h a s an a n c i l l a r y r e s p o n si b il i t y under FLORA to in s p e c t and e n fo r c e m ig ra n t h o u sin g

sta n d a r d s in camps owned o r c o n tr o ll e d by farm la b o r

c o n tr a c t o rs .
176

R e c e n tly th e th r e e a g e n c ie s com p le ted an ag re em en t

on c o o r d in a tio n o f h o u sin g in s p e c tio n s. The p u rp o se

o f t h is ag re em en t is to maximize th e use o f D epartm ent

o f Labor r e s o u r c e s, expand D epartm ent o f Labor a b i l i t y

to e n fo r c e a p p li c a b l e r e g u l a tio n s o f m ig ra n t h o u sin g

f a c i l i t i e s , and av o id u n n e c e ss a ry d u p li c a ti o n . S ta n ­

d a r d i z a tio n ha s a ls o been one o f our g o a ls r e l a ti n g

to th e h e a lth and s a f e ty g u id e lin e s fo r m ig ra n t h o u sin g . The ag re em en t in c lu d e s p r o v isio n fo r c o o rd in a te d

t a r g e ti n g o f h o u sin g in s p e c tio n s, fo r s h a rin g h o u sin g

in s p e c tio n in fo rm a tio n among th e component a g e n c ie s,

and fo r r e f e r r a l o f u n s a fe h o u sin g si t u a t i o n s to th e

agency t h a t c an b e st h a n d le th e e n fo rc em en t in a c c o rd ­

ance w ith i ts j u r is d i c t i o n ove r such h o u sin g .

The h o u sin g c o o r d in a tio n ag re em en t s e rv e s a s a

m ajor a c com p lishm en t t h a t ha s grown o u t o f th e ex p e ­

rie n c e o f th e D e p a rtm e n t's r e g io n a l c o o r d in a tio n a c t i v i ­

t i e s . In June 1977 th e Employment S ta n d a rd s A d m in istr a ­

tio n was d e sig n a te d a s th e le a d agency fo r c o o r d in a tin g

th e D e p a rtm e n t's f i e l d a c t i v i t i e s r e l a ti n g to m ig ra n t

and s e a s o n a l fa rm w o rk e rs. T his c o o r d in a tio n ha s in ­

c lu d e d th e e sta b lis h m e n t o f r e g io n a l c o o r d in a tin g comm itt e e s in th e 10 D epartm ent r e g io n s .made up o f r e p r e ­

s e n t a ti v e s o f th e D e p a rtm e n ta l component a g e n c ie s and
c h a ir e d by th e R eg io n a l A d m in istr a to rs fo r SSA. These

com m itte e s p la n r e g io n a l c o o r d in a tio n s tr a t e g i e s and

d e a l w ith iss u e s and p ro b lem s r e l a ti n g to m ig ra n t p r o ­

grams o f th e a g e n c ie s a s th e y a r is e .

The m ig ra n t f i e l d c o o r d in a tio n str a t e g y a ls o i n ­

c lu d e s st e p s to seek th e in v o lv em e n t o f, and to work

w ith , o th e r g o v e rnm en ta l and n o n g o v e rnm en ta l g ro u p s

i n t e r e st e d in m ig ra n t fa rm w o rk e rs. This h a s in c lu d e d

e n c o u ra g in g o th e r F e d e r a l a g e n c ie s, S t a t e Labor D e p a rtm ents and S ta te Employment S e rv ic e a g e n c ie s, and r e p r e ­

s e n t a ti v e s o f m ig r a n ts, e .g . CETA 303 g r a n te e s and

o th e r r e p r e s e n t a ti v e s, to p a r t i c i p a t e in r e g io n a l c o ­

o r d in a tio n com m itte e m e e tin g s. S te p s have a ls o been

ta k e n to e n co u rag e o th e r g o v e rnm e n ta l a g e n c ie s to p a r t i ­

c i p a t e in m e e tin g s w ith m ig ra n t w o rk e rs a n d /o r t h e ir

r e p r e s e n t a ti v e s to d is c u ss and e x p la in program s d e a lin g

w ith m ig ra n t w orker iss u e s and c o n c e rn s. O the r exam ples

o f i n t e r a c ti o n w ith F e d e r a l a g e n c ie s have in c lu d e d

such th in g s a s D e p a rtm e n ta l c o o p e r a tio n w ith th e En v iro n

m e n ta l P r o t e c tio n Agency in d e sig n in g stu d i e s on p e s t ic id e s and c o o p e r a tiv e e f f o r ts betw een th e D epartm ent

and th e Im m ig ra tio n and N a tu r a li z a ti o n S e rv ic e in e n fo r c

ing th e undocumented w orker p r o v isio n o f th e FLORA.
178

On th e S ta te l e v e l, exam ples o f i n t e r a c ti o n i n ­

c lu d e ag re em e n ts betw een th e D epartm ent and th e S t a t e s

o f New J e rs e y and F lo rid a p ro v id in g fo r S ta te a s s is t ­

anc e to th e D epartm ent in r e g ist e r i n g farm la b o r co n ­

tr a c t o rs under FLORA. A lso , a j o i n t p r o j e c t was u n d e rta k e n betw een th e S ta te o f New York and th e Employment

S ta n d a rd s A d m in istr a tio n to i d e n tif y gaps in p r o t e c ­

tio n s p ro v id e d under F e d e r a l and S t a t e law s fo r m ig ra n t

fa rm w o rk e rs.

I would now li k e to fo c u s on th e r o le o f th e Employment S ta n d a rd s A d m in istr a tio n in p r o t e c tin g farm w orkers

under FLORA. My c o ll e a g u e s, Mr. W hiting and Mr. W illiam s,

w ill th e n d is c u ss th e a d m in istr a tio n o f th e O c c u p a tio n a l

S a f e ty and H e a lth Act and th e W agner-Peyser Act in

t h a t o r d e r.

The Farm Labor C o n tr a c to r R e g istr a tio n Act is

a v i t a l p r o t e c ti v e law fo r fa rm w o rk e rs. Much o f th e

la b o r which goes in to a g r i c u l t u r a l p ro d u c tio n in t h is

c o u n try is s u p p lie d th ro u g h a farm la b o r c o n tr a c tin g

sy stem in which a farm la b o r c o n tr a c to r a c ts a s a b rid g e

in r e c r u iti n g and su p p ly in g fa rm w o rk e rs to farm o p e r a ­

t o rs . The FLORA was e n a c te d to p r o t e c t m ig ra n t fa rm ­

w o rk e rs a g a in st ab u se s and e x p l o it a ti o n under t h is
179

sy stem and i t was amended in 1974 to expand c o v e ra g e

to a d d iti o n a l w orke rs n o t p r e v io u sly c o v e red by th e

A c t's p r o t e c ti o n , to in c r e a s e th e p r o t e c ti o n s fo r m ig ra n t

fa rm w o rk e rs under th e A c t, and to p ro v id e enhanced

m echanisms fo r e n fo r c in g th e A c t.

In o rd e r to p r o t e c t m ig r a n ts and improve t h e ir

c o n d itio n s, th e FLCRA r e q u ir e s farm la b o r c o n tr a c t o rs

to r e g is t e r w ith th e D epartm ent o f Labor and to o b s e rv e

c e r t a i n r u l e s in d e a lin g w ith m ig ra n t fa rm w o rk e rs.

The Act r e q u ir e s, amohg o th e r t h in g s, t h a t c o n tr a c t o rs

have l i a b i l i t y in s u r a n c e on th e v e h i c l e s th e y use to

tr a n s p o rt m ig ra n t w o rk e rs, t h a t th e y in fo rm w o rk e rs

a s to th e wages to be p a id and o th e r w orking c o n d itio n s,

and t h a t h o u sin g and v e h i c l e s fo r m ig r a n ts meet F e d e r a l

and S t a t e s a f e ty and h e a lth st a n d a r d s. With th e e n a c tment o f th e 1974 amendments, th e D epartm ent h a s a v a il a ­

b le an a ss o rtm e n t o f rem ed ie s f o r e n fo r c in g th e A c t,

in c lu d in g c rim in a l p r o s e c u tio n , c i v i l in ju n c tiv e a c tio n ,

and a sse sm e n t o f c i v i l money p e n a lti e s o f up to $1,000

f o r each v i o l a ti o n .
180

The Employment S ta n d a rd s A d m in istr a tio n 's Wage

t

and Hour D iv isio n ha s th e d a y -to -d a y r e s p o n si b ilit y

fo r th e a d m in istr a tio n and e n fo rc em en t o f FLCRA. The

Wage and Hour D iv isio n f i r s t assumed r e s p o n si b ilit y

fo r th e Act in l a t e 1972 w ith th e tr a n sf e r o f th e s e

a d m in istr a tiv e and en fo rc em en t r e s p o n s i b i l i t i e s to

i t from th e D e p a rtm e n t's Manpower A d m in istr a tio n (now

th e Employment and T r a in in g A d m in istr a tio n ). One o f

th e re a so n s fo r th e tr a n sf e r was to ta k e a d v a n ta g e

o f W age-H our's n a tio n w id e i n v e sti g a t o r y s t a f f .

The Employment S ta n d a rd s A d m in istr a tio n is committe d to a ss u rin g t h a t th e FLORA'S p r o t e c ti o n s fo r m ig ra n t

farm w orke rs a r e implem ented in th e str o n g e st and most

e ff e c ti v e manner p o ssi b l e . We b e li e v e t h is commitment

ha s been d em o n stra te d by th e p r o g r e ss which we have

made.

An e s s e n t i a l f i r s t ste p fo r e n s u rin g t h a t m ig ra n t

fa rm w o rk e rs a r e r e c e iv in g th e p r o t e c ti o n s to which

th ey a r e e n t i t l e d under th e Act is to make s u r e th a t

a l l farm la b o r c o n tr a c to rs r e g is t e r w ith th e D e p a rtm ent. There h a s beep a c o n tin u a l in c r e a s e in th e number

o f c o n tr a c to rs r e g ist e r e d under th e Ac-t. D uring c a le n d a r
181

y e a r 1972, th e r e were 1,372 r e g is tr a n ts — 1,2 1 1 farm

la b o r c o n tr a c t o rs were r e g ist e r e d and i d e n t if i c a t i o n

c a rd s were iss u e d to 161 f u ll-tim e or r e g u la r em ployees

who p e rfo rm farm la b o r c o n tr a c tin g a c t i v i t i e s on b e h a lf

o f a r e g ist e r e d c o n tr a c t o r. In c a le n d a r y e a r 1978,

we r e g ist e r e d 8 ,0 4 0 farm la b o r c o n tr a c t o rs and iss u e d

i d e n t if i c a t i o n c a rd s to 8,118 f u ll-tim e or r e g u la r

em p lo y e e s, fo r a t o t a l o f 16,158 r e g is tr a n ts . Through

Septem ber 30 o f t h is y e a r, we had r e g ist e r e d 8,739

farm la b o r c o n tr a c t o rs and iss u e d i d e n t if i c a t i o n c a rd s

to 7,9 3 1 f u ll-tim e o r r e g u la r em p lo y e e s, fo r a t o t a l

o f 1 6 ,6 7 0 . E x p e rie n c e in d i c a t e s t h a t th e most e f f e c ­

ti v e method fo r a ss u rin g c om p lian c e w ith th e Act is

th ro u g h a stro n g en fo rc em en t p ro g ram . A c om p reh en siv e

e n fo rc em en t str a t e g y has been d ev e lo p e d to a c h ie v e

w id e sp re a d com p lian c e w ith th e A c t. , The em pha sis o f

t h is a c t i v i t y c e n t e rs on c e r t a i n v i t a l a r e a s —which

le a d , w ith p ro p e r im p lem e n ta tio n , to a stro n g v is i b l e

e n fo rc em en t p ro g ram . There is a c o n c e n tr a tio n on r e p e a t

s e rio u s v i o l a t o rs an d , in c o n ju n c tio n , an em phasis

t h a t i n v e sti g a ti o n s be d ev e lo p ed fo r c rim in a l l i t i g a t i o n
182

Top p r i o r i t y is g iv e n to id e n tif y in g and i n v e s t ig a tin g c o n tr a c to rs who have r e p e a te d s e rio u s v i o l a ti o n s

o f the A c t. A sy stem ha s been e st a b lis h e d fo r i n t e r -

and i n tr a - r e g i o n a l c o o r d in a tio n fo r th e s it u a ti o n s

where a c o n tr a c to r found to be in v i o l a ti o n is moving

in to a n o th e r g e o g ra p h ic a r e a and a fo llo w u p i n v e s t ig a tio n is in d i c a t e d . In t h is c o n n e c tio n an autom ated

tr a c e r l is t i n g is used to tr a c k i n v e sti g a ti o n h is t o r i e s

o f r e p e a t v i o l a t o rs . Thus, our com p lian c e o f f i c e rs

e n c o u n te rin g a s e rio u s v i o l a ti o n in some o th e r re g io n

know th e r e c o rd o f t h a t c o n tr a c t o r. Of th e a p p ro x im a te ly 2300 farm la b o r c o n tr a c to r em ployees who were

i n v e stig a t e d and found to be in v i o l a ti o n in f is c a l

y e a r 1979, we have i d e n tif i e d th e 300 most s e rio u s

r e p e a t v i o l a t o rs .

In c a rr y in g o u t our en fo rc em en t a c t i v i t i e s , we

use in t e g r a t e d i n v e sti g a ti o n s c o v e rin g th e c o n tr a c t o r,

th e em p lo y e e (s) and th e u se r of th e c o n tr a c t o r 's s e r ­

v ic e s to p ro v id e th e most e ff e c ti v e use of tim e and

to a c h ie v e a g r e a t e r l e v e l o f c om p lia n c e . Where th e r e

is a ls o c o v e rag e under th e F a ir Labor S ta n d a rd s A c t,

th e st a t u s o f com p lian c e w ith t h a t A c t, which c u rr e n tl y

r e q u ir e s t h a t co v e red farm w orke rs be p a id a minimum

wage o f $2.90 an h o u r, is d e te rm in e d d u rin g th e v is i t

u n d e rta k e n fo r th e FLCRA i n v e sti g a ti o n s.
183

The e n fo rc em en t s t a t is t i c s b e a r o u t th e p r o g r e ss

which has been made under our c om p reh en siv e e n fo rc em e n t

a p p ro a c h . We have st e a d il y in c r e a s e d th e number o f

com p lian c e in v e sti g a ti o n s under th e A c t. In f is c a l

< y e a r 1975, l e ss th a n 1,000 i n v e sti g a ti o n s in v o lv in g

farm la b o r c o n tr a c to rs and r e l a t e d p ro b lem s were co n ­

d u c te d . By f is c a l y e a r 1979 we co n d u c ted 5,703 comp lia n c e i n v e sti g a ti o n s. Over t h is p e rio d o f tim e ,

we have a ls o seen a d ro p in th e p e r c e n ta g e o f c om p liance i n v e sti g a ti o n s which uncover v i o l a ti o n s. In f is c a l

y e a r 1975, 86 p e r c e n t o f th e i n v e sti g a ti o n s u n co v e red

v i o l a t i o n s . T h is p e r c e n ta g e dropped to a round 70 p e rc e n t in f is c a l y e a rs 1976 th ro u g h 1978 and to 53 p e rc e n t in f is c a l y e a r 1979. However, a more r e a l is t i c

v i o l a ti o n r a t e fo r 1979 is o b ta in e d by n o tin g th a t

66 p e r c e n t o f a l l co v e red a c t i v i t i e s were found to

be in v i o l a ti o n .

In o rd e r to e n su re com p lian c e w ith th e A c t, we

have been s e e k in g th e m u ltip l e rem ed ie s i t p r o v id e s.

A sse ssm en ts o f c i v i l money p e n a lti e s sin c e J a n u a ry

1977, when th e f i r s t p e n a lti e s were l e v i e d , now t o t a l

more th a n $ 3.7 m illi o n . Through Septem ber 30 o f t h is

y e a r, $350,613 in c i v i l money paym ents had been r e c e iv e d .
184

We have a ls o n o t h e sit a t e d to ta k e a d m in istr a tiv e a c tio n

to deny c e r t if i c a t i o n to farm la b o r c o n tr a c t o rs b e c au se

o f v i o l a ti o n s o f th e A c t. The S e c r e ta r y ha s iss u e d

f i n a l o r d e rs in 323 a d m in istr a tiv e a c tio n s in v o lv in g

r e v o c a tio n s, r e f u s a ls to iss u e or renew , and su sp e n ­

sio n s o f r e g is tr a t i o n c e r t if i c a t e s from 1975 th ro u g h

Septem ber 30, 1979 o f t h is y e a r. The m a jo rity o f th e

a d m in istr a tiv e o r d e rs — 251— have been iss u e d sin c e

th e b e g in n in g o f 1977.

The Wage and Hour D iv isio n has co n d u c ted h o u sin g

s a f e ty and h e a lth i n v e sti g a ti o n s in s i t u a t i o n s where

farm la b o r c o n tr a c to rs a r e found to own or c o n tr o l

la b o r camps. In f is c a l y e a r 1979, 705 h o u sin g s a f e ty

and h e a lth in s p e c tio n s were c o n d u c te d , and we e x p e c t

to in c r e a s e th a t e f f o r t d u rin g th e c u rr e n t y e a r.

There a r e some c o o r d in a tio n a c t i v i t i e s which r e l a t e

to our en fo rc em en t f u n c tio n s in v o lv in g h o u sin g . In

in sta n c e s where D e p a rtm e n ta l i n v e sti g a ti o n s o f farm

la b o r c o n tr a c to r h o u sin g le a d to c lo sin g down of th e

h o u sin g and a r e s u lt a n t d is p la c em e n t o f fa rm w o rk e rs,

we r e f e r th e farm w orkers to th e Employment and T r a in in g

A d m in istr a tio n which r e f e rs th e m a tte r to th e a p p ro ­

p r i a t e CETA 303 g r a n t e e . The CETA 303 g r a n te e p ro v id e s

a p p r o p ria te emergency a ssist a n c e to th e fa rm w o rk e rs.
185

A lso , under th e D e p a rtm e n t's c o o rd in a te d h o u sin g inspe<

tio n p ro g ram , a l l o f W age-H our's a p p ro x im a te ly 1,000

com p lian c e o f f i c e rs have r e c e iv e d h o u sin g s a f e ty end

h e a lth tr a i n i n g under a tr a i n i n g package which was

p re p a r e d in c o o p e r a tio n w ith OSHA.

The D epartm ent b e li e v e s t h a t th e law in c lu d e s

a d e q u a te e n fo rc em en t rem ed ie s to e n su re t h a t m ig r a n ts

r e c e iv e th e p r o t e c tio n s to which th e y a r e e n t i t l e d

under the A ct. We in te n d to in c r e a s e th e Wage-Hour

en fo rc em en t e f f o r ts to l e t farm la b o r c o n tr a c to rs know

t h a t if th e y v i o l a t e th e a c t, th e r e is a v e ry stro n g

p o s s i b i l i t y t h a t th o s e v i o l a ti o n s w ill be uncovered

and th ey w ill be s u b je c te d to th e p e n a lty p r o v isio n s

o f th e A c t. The 66 p e r c e n t v i o l a ti o n r a t e fo r in v e sti

g a tio n s co v e red under th e Act can n ev e r be a c c e p ta b le .

I t is o n ly i n d i c a ti v e o f how much rem a in s to be done

in s e c u rin g c om p lia n c e . We a r e d e te rm in e d to se e th a t

th e p rom ise t h is law h o ld s fo r m ig ra n t farm w orkers

becomes a r e a l i t y .
186

This c o n c lu d e s ray p a rt o f th e D e p a rtm e n t's t e s t i ­

mony. A tta c h e d to our te stim o n y is a l is t i n g , a s r e ­

q u e ste d , which d e s c rib e s l i t i g a t i o n c u rr e n tl y pending

a g a in st th e D epa rtm ent by r e p e rs e n t a ti v e s o f employee

g ro u p s. I w ill be happy to answ er any q u e stio n you

or th e Subcom m ittee members may have ab o u t th e adminis tr a t i o n of FLCRA a f t e r my A ss o c i a t e s' rem a rk s.

■»
187

STATEMENT OF BASIL WHITING

DEPUTY ASSISTANT SECRETARY

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

U .S. DEPARTMENT OF LABOR

BEFORE THE

SUBCOMMITTEE ON MANPOWER AND HOUSING

COMMITTEE ON GOVERNMENT OPERATIONS

U .S. HOUSE OF REPRESENTATIVES

November 1 3, 1979

Madam Chairwoman and Members o f th e Com m ittee:

I a p p r e c i a t e t h is o p p o rtu n ity to d is c u ss th e Occu

p a tio n a l S a f e ty and H e a lth A d m in istr a tio n 's (OSHA)

e n fo rc em en t o f sta n d a r d s a ff e c ti n g m ig ra n t fa rm w orke rs

In your l e t t e r o f i n v i t a t i o n , you i d e n tif i e d s p e c ifi c

a r e a s o f c o n c e rn to th e Com m ittee. My te stim o n y to d ay

w i l l , in a c c o rd w ith your r e q u e st, a d d r e ss th e q u e sti o n s posed in your l e t t e r to th e e x t e n t th e y r e l a t e

to OSHA's r e s p o n s i b i l i t i e s .

With r e s p e c t to m i g r a n t-r e l a t e d e n fo rc em en t a c t i ­

v i t i e s , OSHA's p rim a ry em p h a sis in p r o t e c tin g m ig ra n t

fa rm w o rk e rs is fo c u se d on a p p li c a ti o n o f i ts m ig ra n t

h o u sin g st a n d a r d , (29 CFR 1 9 1 0 .1 4 2 ). T h is sta n d a r d ,

ad o p ted in 1971, a p p li e s to a l l tem p o ra ry la b o r camps

p ro v id e d to w o rk e rs a s a b e n e fit to t h e ir em p lo y e r.
188

OSHA took ste p s to e n fo r c e i ts a u t h o rit y in such f a c i l i

t i e s . Economic n e c e ssity o ft e n d i c t a t e s t h a t m ig ra n t

w o rk e rs li v e in em p lo y e r-p ro v id e d h o u sin g , under c o n d iti o n s ov e r which th e y have l i t t l e o r no c o n tr o l. Thus

such h o u sin g is c l e a r l y a w orking c o n d itio n .

OSHA e n f o r c e s i ts m ig ra n t h o u sin g sta n d a rd in

th o s e S t a t e s and t e r r i t o r i e s where OSHA h a s n o t d e l e ­

g a te d i ts s a f e ty and h e a lth e n fo rc em en t a u t h o rit y to

th e S t a t e s. In a d d iti o n , th e 24 OSHA d e sig n e e s in

S t a t e s where a u t h o rit y ha s been d e le g a te d a ls o e n fo r c e

e it h e r sim il a r o r i d e n ti c a l m ig ra n t h o u sin g sta n d a r d s.

In f is c a l y e a r 1979, OSHA's F e d e r a l m ig ra n t h o u sin g in s p e c tio n g o a l was s e t a t 1,0 0 0 in s p e c tio n s.

For th e f i r s t tim e , th e Agency n o t o n ly met b u t s u rp a ss e d i ts g o a l, w ith th e i n i t i a t i o n o f 1,1 7 1 in s p e c ­

ti o n s in th e s e f a c i l i t i e s . This a c t i v i t y r e s u lt e d

in c i t a t i o n s fo r a t o t a l o f 1,239 v i o l a t i o n s . Of th e s e

52 were c l a s s if i e d a s s e rio u s v i o l a t i o n s , t h a t is ,

l i k e l y to c a u s e d e a th o r s e rio u s p h y si c a l harm. Of
189

th e rem a in d e r 1,150 were c it e d a s " o th e r th a n s e ri o u s, "

and 37 a s r e p e a te d v i o l a ti o n s. F e d e r a l p e n a lti e s fo r

th e y e a r to t a l e d $ 1 9 ,3 0 0 . In th e 24 S t a t e s t h a t co n ­

d u c t funded s a f e ty and h e a lth p ro g ram s, 764 h o u sin g

in s p e c tio n s were c o n d u c te d , d is c o v e rin g a t o t a l o f

1,0 9 6 v i o l a ti o n s.

OSHA's j u r is d i c t i o n over m ig ra n t h o u sin g f a c i l i ­

t i e s fo r p u rp o s e s of s a f e ty and h e a lth e n fo rc em en t

is th e b ro a d e st w ith in th e D epartm ent o f L ab o r. U n lik e

th e Employment S ta n d a rd s A d m in istr a tio n (ESA) which

e n f o r c e s th e Farm Labor C o n tr a c to r R e g istr a tio n A c t,

we a r e no t lim it e d to e n fo r c in g h o u sin g sta n d a r d s in

o n ly th o s e camps owned or c o n tr o ll e d by farm la b o r

c o n tr a c t o rs. Under i ts m an d a te , OSHA in s p e c ts a l l

m ig ra n t h o u sin g p ro v id e d a s a b e n e fit to th e em p lo y e r,

r e g a r d l e ss of si z e o r so u rc e o f ow n e rsh ip or c o n tr o l.

In an e f f o r t to enhance th e e ff e c ti v e n e ss o f i ts

p ro g ram , we h av e , d u rin g th e p a st th r e e y e a rs, awarded

c o n tr a c ts to S t a t e s under F e d e r a l OSHA j u r is d i c t i o n .

Under th e s e a g re em e n ts, S t a t e p e rs o n n e l a r e tr a in e d

and d e p u tiz e d a s F e d e r a l com p lian c e o f f i c e rs to co n d u c t

m ig ra n t h o u sin g in s p e c tio n s. D uring f is c a l y e a r 1979,

68-643 0 - 8 0 - 1 3
190

th e S t a t e s o f New J e rs e y , W isco n sin and Ohio were awarded

such c o n tr a c ts and pro d u c ed a t o t a l of 631 m ig ra n t

h o u sin g in s p e c tio n s. T h is e f f o r t s i g n if i c a n t l y en h an c e s

OSHA’s a b i l i t y to in s p e c t more m ig ra n t la b o r camps.

In a d d itio n to c o n tr a c ts, two y e a rs ago OSHA a d o p te d

a "New D ir e c tio n s ” program fo r th e p u rp o s e o f d e v e lo p ­

ing th e i n t e r n a l c a p a b ilit y o f l a b o r, em p lo y e rs, and

o th e r e d u c a tio n a l o r g a n i z a tio n s to p ro v id e c o n tin u ­

ing o c c u p a tio n a l s a f e ty and h e a lth s e r v i c e s to w orkers

and em p lo y e rs. In c o n n e c tio n w ith t h is p ro g ram , OSHA

h a s awarded th e N a tio n a l A ss o c ia tio n o f Farmworker

O rg a n iz a tio n s (NAFO) g r a n ts t o t a l l i n g §135,000 to d e v e lo p

and im plem ent a h a z a rd r e c o g n itio n and c o n ro l program

f o r m ig r a n t fa rm w o rk e rs. I t is hoped t h a t th e NAFO

g r a n t w ill r e s u l t in both s e n siti z i n g fa rm w orke rs to

th e e x ist e n c e o f h a z a rd o u s h o u sin g c o n d itio n s a s w e ll

a s e n c o u ra g in g them to a l e r t OSHA r e g a rd in g such h a z a rd s,

so t h a t a p p r o p ri a t e a c tio n may be ta k e n .

Having r e s o lv e d th e iss u e o f d u a l sta n d a r d s e n f o r c e -

' m en t, th e D epa rtm ent has p ro c e ed ed ov e r th e p a st y e a r

to improve c o o r d in a tio n betw een i ts a g e n c ie s w ith m ig ra n t

r e l a t e d r e s p o n s i b i l i t i e s . As d is c u ss e d by Mr. B e rrin g to n ,
191

OSHA, ESA and th e Employment and T r a in in g A d m in istr a ­

tio n (ETA) have r e c e n tly n e g o tia te d an agre em ent fo r

an in te r a g e n c y c o o rd in a te d in s p e c tio n program . D e signed

to red u c e d u p li c a tio n o f e f f o r t , t h is ag re em en t p ro v id e s

t h a t OSHA w ill c o n c e n tr a te i ts h o u sin g in s p e c tio n s

o n ly in th o s e camps n o t p r e v io u sly in s p e c te d by e it h e r

S t a t e Employment S e c u rity p e rs o n n e l or by Wage-Hour

com p lian c e s t a f f e n fo r c in g FLORA.

Moving on to th e m a tte r o f d u a l h o u sin g st a n d a r d s,

th e number o f s e p a r a te r e g u l a tio n s o f th e D ep a rtm en t,

a ff e c ti n g m ig ra n t housin g f a c i l i t i e s , was o f c o n sid e r a ­

b le c o n c e rn to u s. In an e f f o r t to r e s o lv e th e p ro ­

blem , th e D epa rtm ent ad o p ted a p o lic y which we f e e l

w ill c l a r if y l e g a l o b lig a tio n s o f th e em ployer and

a t th e same tim e w ill no t u n n e c e ss a rily d isr u p t e x isti n g

h o u sin g a rr a n g em e n ts.

Under t h is p ro p o sed p o li c y , a l l h o u sin g c o n str u c te d

p ri o r to th e d a te o f p u b li c a tio n is s u b j e c t to e it h e r

th e ETA sta n d a rd or th e OSHA sta n d a r d . Com pliance

w ith e it h e r is deemed to be com p lian c e w ith th e o th e r.

The c h o ic e o f which sta n d a rd to comply w ith is l e f t

to th e d is c r e ti o n o f th e owner or c o n tr o lli n g o p e r a to r.
192

M ig ran t h o u sin g c o n str u c te d on or a f t e r th e d a te o f

f i n a l p u b li c a ti o n w ill be s u b j e c t e x c lu siv e ly to th e

somewhat s t r i c t e r OSHA h o u sin g st a n d a r d . R e p r e s e n ta ­

t i v e s o f b o th a ff e c t e d employee and em ploye r g ro u p s

were c o n s u lte d p ri o r to th e a d o p tio n o f t h is p o lic y

and b o th g ro u p s in d i c a t e d g e n e r a l a g re em e n t w ith such

a p ro c e d u r e .

B e sid e s i ts o b v io u s i n t r i n s i c b e n e f i ts , th e d e v e lo p ­

ment o f t h is c o o r d in a tio n program h a s had th e added

v a lu e o f e st a b lis h i n g an e f f e c ti v e w o rking r e l a ti o n s h i p

betw een th e p a r t i e s to th e a g re em e n t. We a p p la u d t h is

r e s u l t and lo o k fo rw a rd to c o n tin u in g our work w ith

ETA and ESA a t th e n a tio n a l o f f i c e to f u rt h e r improve

c o o r d in a tio n w ith in th e D ep a rtm en t. We a ls o f u ll y

s u p p o rt th e e f f o r ts o f th e R e g io n a l C o o rd in a tin g Committ e e s and w ill c o n tin u e our a c tiv e p a r t i c i p a t i o n in

th e a c t i v i t i e s o f th e s e g ro u p s in th e 10 F e d e r a l r e g io n s.

In c o n c lu sio n , we would li k e to s t a t e t h a t we

a r e m ost p le a s e d by th e g a in s made by OSHA and th e

D ep a rtm en t on b e h a lf o f m ig ra n t w o rk e rs o v e r th e p a st

y e a r. However, we a ls o r e c o g n iz e t h a t much rem a in s

to be done to b rin g th e w orking c o n d itio n s o f th e m ig ra n t
. 193

p o p u la tio n up to p a r w ith th o s e o f o th e r U .S. w o rk e rs.

OSHA is com m itted to t h is e f f o r t and w ill c o n tin u e

to work w ith i ts p a rtn e rs in th e D epartm ent to a c h ie v e

th e d e sir e d o b j e c tiv e .

Madam Chairwoman, t h is c o n c lu d e s my p re p a r e d s t a t e

m ent. A fte r my A ss o c i a t e s' rem a rk s, I would be p le a s e d

to answ er any q u e stio n s t h a t you may have r e g a rd in g

th e a d m in istr a tio n o f OSHA.
194

STATEMENT OF DAVID 0. WILLIAMS

ADMINISTRATOR

UNITED STATES EMPLOYMENT SERVICE

U.S. DEPARTMENT OF LABOR

BEFORE THE

SUBCOMMITTEE ON MANPOWER AND HOUSING

COMMITTEE ON GOVERNMENT OPERATIONS

U.S. HOUSE OF REPRESENTATIVES

November 13, 1979

Madam Chairwoman and Members of the Subcommittee:

I am pleased to have this opportunity to appear 

before you today to discuss programs and services for j

migrant and seasonal farmworkers that are administered

by the United States Employment Service (USES), principally under the authority of the Wagner-Peyser Act.

The USES, through a network of State Job Service

(JS) agencies and their local offices, provides labor

exchange services to match employer needs for workers

with qualified job applicants. All applicants and

employers are eligible for services which include,

in the case of applicants:

. registration and assessment,

. counseling,

. testing,

. referral to supportive services and training,
195

. r e f e r r a l to s u p p o rtiv e s e r v i c e s and tr a i n i n g ,

. jo b d e v e lo p m e n t, and

. r e f e r r a l to a g r i c u l t u r a l and n o n a g r i c u l t u r a l j o b s .

For e m p lo y e rs, s e r v i c e s a v a i l a b l e i n c l u d e :

. l i s t i n g jo b o p e n in g s,

. t e s t i n g w o rk e rs,

. s c r e e n in g and r e f e r r i n g w o rk e rs to jo b s,

. s p e c i a l r e c r u itm e n t e f f o r ts in c l u d in g i n t e r s t a t e

r e c r u i tm e n t ,

. p r o v isi o n o f la b o r m a rk e t i n f o rm a tio n , and

. em p lo y e r t e c h n i c a l s e r v i c e s

T h e se s e r v i c e s a r e p r o v id e d , on a n o -f e e b a s is ,

th ro u g h a p p r o x im a t e ly 2 ,6 0 0 l o c a l o f f i c e s a c r o ss th e

c o u n tr y .

In f is c a l y e a r 1979, th e USES o p e r a t e d w ith a

b u d g e t o f a p p r o x im a t e ly $720 m i ll i o n f o r th e d e l i v e r y

o f b a si c l a b o r e x c h a n g e s e r v i c e s w hich p r o v id e d f o r

3 0 ,0 0 0 s t a f f p o s i t i o n s to d e l i v e r th e s e s e r v i c e s .

D a ta on JS s e r v i c e s p ro v id e d f o r f is c a l y e a r 1 9 7 9 ,

w hich en d ed in Sep tem b e r 1 9 7 9 , w i l l be a v a i l a b l e by

th e end o f th e m o n th . ■ We would be p l e a s e d to p r o v id e
196

t h is to th e Comm ittee when i t is a v a i l a b l e . In o rd e r

to p ro v id e you w ith an o v e rv iew o f JS s e r v i c e s , I w ill

c i t e d a ta from f is c a l y e a r 19 7 8 . In f is c a l y e a r 1978,

th e JS a g e n c ie s r e g is t e r e d and a ss e ss e d more th a n 20

m illi o n a p p li c a n ts . D u rin g t h a t y e a r, th e Jo b S e rv ic e

p la c e d in jo b s o v e r 4 .6 m i ll i o n a p p l i c a n ts . These

a p p li c a n ts in c lu d e d 2 0 4 ,0 0 0 m ig ra n t and s e a s o n a l fa rm ­

w o rk e rs. Over 1 0 6 ,0 0 0 o f th e s e m ig ra n t and s e a s o n a l

fa rm w o rk e rs were r e f e r r e d to jo b s and 8 2 ,0 0 0 w ere p la c e d

in jo b s. One o u t o f fi v e o f th e s e p la c e m e n ts was in

n o n a g ri c u lt u r a l em ploym ent.

Over th e p a st 5 y e a rs , th e U n ite d S t a t e s Employment S e rv ic e h a s c h a n n e le d s u b s t a n t i a l s t a f f r e s o u r c e s

to e n s u r e e q u it a b l e p r o v isio n o f JS s e r v i c e s to m ig ra n t

and s e a s o n a l fa rm w o rk e rs. These USES e f f o r ts have

b e en in c o n ju n c tio n w ith c o n c e rn s e x p r e ss e d by fa rm ­

w o rk e r o r g a n i z a ti o n s a s p a r t i e s to a c o n s e n t o rd e r

e n t e r e d in th e c a s e o f NAACP v . M a rs h a ll, in 1974.

The in c r e a s e d em p h a sis p la c e d on s e r v in g m ig r a n ts

and s e a s o n a l fa rm w o rk e rs by th e U n ited S t a t e s Employment S e rv ic e is i l l u s t r a t e d by th e fo llo w in g a c ti o n s

we have ta k e n .
197

F i r s t , to in s u r e t h a t th e ne tw o rk o f

S t a t e and l o c a l employment o f f i c e s is r e s p o n ­

siv e to th e e x p re ss e d employment r e l a t e d

n e ed s o f m ig r a n ts and s e a s o n a l fa rm w o rk e rs,

th e U n ite d S t a t e s Employment S e r v ic e iss u e d

r e g u l a ti o n s in J a n u a ry 1977 w hich s p e c i f ic a ll y g o v e rn th e p r o v isio n o f employment

s e r v i c e s to m ig ra n t and s e a s o n a l fa rm w o rk e rs.

The r e g u l a ti o n s p la c e s p e c ifi c and s p e c i a l

r e q u ir e m e n ts on S ta t e a g e n c ie s to e n s u r e

t h a t m ig ra n t and s e a s o n a l fa rm w o rk e rs a re

p ro v id e d th e f u l l ran g e o f JS s e r v i c e s.

The r e g u l a ti o n s a ls o e st a b lis h e d a JS comp l a i n t sy stem w hich o p e r a t e s in a l l 54 S t a t e s

and th e tr u s t t e r r i t o r i e s . The JS c o m p la in t

system c o v e rs c o m p la in ts by a p p li c a n ts a g a in st

th e Jo b S e r v i c e a g e n c ie s th em s e lv e s and a g a in st

em p lo y e rs who p l a c e jo b o r d e rs w ith th e Job

S e r v i c e . A ll c o m p la in ts r e g a r d in g th e Farm

Labor C o n tr a c to r R e g istr a tio n A c t, th e F a ir

Labor S ta n d a r d s A c t, and th e O c c u p a tio n a l

S a f e ty and H e a lth Act a r e fo rw a rd e d to th e

a p p r o p ri a t e a g e n c y .
198

Second, th e USES s e ts f o rth program

em phasis sta te m e n ts in i ts a n n u a l Program

Budget P la n n in g G u id e lin e s. For th e l a s t

s e v e r a l y e a rs, m ig ra n t and s e a s o n a l farm w orke rs

have been s p e c ifi e d a s a to p p r i o r i t y t a r g e t

group f o r program em phasis by USES, second

o n ly to v e t e r a n s who r e c e iv e p e rf e r e n c e by

l e g is l a t i v e m andate .

T h ir d , sin c e f is c a l y e a r 1976, th e USES

h as p ro v id e d s u b st a n ti a l a d d i ti o n a l funds

to S ta te a g e n c ie s to c o n d u c t o u tr e a c h and

o th e r m ig ra n t and s e a s o n a l farm w orker a c t i ­

v i t i e s , such a s fi e l d c h e ck s on a g r i c u l t u r a l

jo b o r d e rs p la c e d in th e i n t e r s t a t e c l e a r a n c e

sy stem .

O u tre a ch is co n d u c ted in o r d e r to re a ch

th o s e m ig r a n t and s e a s o n a l fa rm w orke rs who

may n o t be 'aware o f th e p la c em e n t and o th e r

s e r v i c e s o ff e r e d by th e Job S e r v ic e . O utre a c h a c t i v i t i e s by JS s t a f f r e s u lt e d in

c o n t a c t w ith over 190,000 m ig r a n t and s e a s o n a l

farm w o rk e rs in f is c a l y e a r 1978.
■

199

F o u rth , em phasis has been p la c e d on

c o o r d in a tio n o f s e r v i c e s betw een JS o ffi c e s

and CETA m ig ra n t p ro g ram s. Local o ffi c e

o u tr e a c h w o rk e rs and o th e r s t a f f have e st a b ­

lis h e d c o o p e r a tiv e a rra n g em e n ts fo r r e f e r r a l

o f JS a p p li c a n ts to CETA m ig ra n t sp o n so rs

and o th e r m ig ra n t and s e a s o n a l farm w orker

o r g a n iz a tio n s fo r tr a i n i n g , work e x p e rie n c e

p ro g ram s, em ergency a ssist a n c e and s u p p o rtiv e

s e r v i c e s. In some lo c a tio n s m ig ra n t program

s t a f f a r e o u tst a ti o n e d a t JS lo c a l o ffi c e s

and v ic e v e rs a . M ig ran t and s e a s o n a l farm ­

worker o r g a n iz a tio n s and o th e r a g e n c ie s p e rform o u tr e a c h fo r JS and r e f e r m ig ra n t and

s e a so n a l farm w orkers to JS fo r employment

a ssist a n c e . A pproxim ately 39,000 m ig ra n t

and s e a s o n a l farm w orkers were re a c h e d th ro u g h

o u tre a c h fo r JS by c o o p e r a tin g a g e n c ie s in

f is c a l y e a r 1978.

F ift h , th e USES e st a b lis h e d a m ig ra n t

and s e a s o n a l farm w orker m o n ito r a d v o c a te

system a t th e S ta te and F e d e r a l l e v e ls .
200

Each S t a t e has a m ig ra n t and s e a s o n a l farmworker m o n ito r a d v o c a te who m o n ito rs th e

S ta te a g e n c y 's p r o v isio n o f s e r v i c e s to m ig ra n t

and s e a s o n a l fa rm w orke rs and th e o p e r a tio n

o f th e JS c o m p la in t''s y stem . At th e F e d e r a l

l e v e l, m o n ito r a d v o c a te s a r e lo c a te d in each

o f th e D e p a rtm e n t's 10 r e g io n a l o f fi c e s and

in th e n a tio n a l m o n ito r o f f i c e h e re in W a shington.

S ix th , r e g u l a tio n s iss u e d in 1977 e st a b - »

lis h e d a rev iew and a ss e ssm e n t p r o c e ss by

which S t a t e a g e n c ie s a r e r e q u ir e d to c o n sta n tly

m o n ito r t h e ir own com p lia n c e w ith JS r e g u la ­

tio n s r e g a rd in g m ig ra n t and s e a s o n a l farm ­

w o rk e rs. The r e g u l a tio n s a ls o e s t a b l is h

a stro n g F e d e r a l o v e rsig h t r o l e c a lli n g fo r

F e d e r a l s t a f f from th e r e g io n a l and n a tio n a l

o f fi c e s to review S ta te agency c om p lia n c e .

The F e d e r a l m o n ito r a d v o c a te s p ro v id e l e a d e rs h ip in t h is m o n ito rin g .

We have been d i l i g e n t in e x e r c isi n g t h is F e d e r a l

o v e rsig h t r o l e . D uring th e p a st two y e a rs, we have

co n d u c ted 56 com p reh en siv e o n sit e re v iew s of S ta te

f
201

a g e n c i e s ' c o m p lia n c e w ith th e r e g u l a t i o n s . T h is r e p r e ­

s e n t e d a s u b s t a n t i a l e f f o r t c a l l i n g f o r s tr u c t u r e d

i n t e r v i e w s w ith a p p r o x im a t e ly 2 ,3 0 0 S t a t e and l o c a l

o f f i c e s t a f f m em bers. E ig h ty -tw o th o u s a n d (8 2 ,0 0 0 )

JS a p p l i c a t i o n s and jo b o r d e rs w ere re v iew e d a s w e ll

a s c o m p l a in t r e c o r d s, r e p o r ts and o th e r d o c u m e n ts.

T h is s p e c i a l em p h a sis by USES on s e r v i c e p r o v isio n

t o m ig r a n t and s e a s o n a l fa rm w o rk e rs h a s had a p o s i t i v e

im p a c t on m ig r a n t and s e a s o n a l fa rm w o rk e rs. The number

o f m ig r a n t and s e a s o n a l fa rm w o rk e r a p p l i c a n ts r e c e i v in g

JS s e r v i c e h a s ris e n s i g n if i c a n t l y in r e c e n t y e a rs.

For ex am p le , from f is c a l y e a r 1 9 7 6 , th e f i r s t y e a r

f o r w hich c o m p le te m ig r a n t and s e a s o n a l fa rm w o rk e r

d a t a is a v a i l a b l e , to f is c a l y e a r 1978 th e number o f

m ig r a n t and s e a s o n a l fa rm w o rk e rs c o n s e l e d d o u b le d ;

th o s e r e f e r r e d to s u p p o rtiv e s e r v i c e s i n c r e a s e d by

263 p e r c e n t; jo b d e v e lo p m e n t s e r v i c e s to m ig r a n t and

s e a s o n a l fa rm w o rk e rs in c r e a s e d 143 p e r c e n t , and r e f e r ­

r a ls to jo b s ro s e 10 p e r c e n t .

6 8 -6 4 3 0 - 8 0 - 1 4
202

More im p o rta n tly , m ig r a n t and s e a s o n a l farm w orkers

r e c e iv e d s e r v i c e s a t r a t e s s u b s t a n t i a l l y h ig h e r th a n

n o n -m ig ra n t and s e a s o n a l fa rm w o rk e rs. For f is c a l y e a r

1978:

p r o p o rti o n a t e ly o n e -th ir d more m ig ra n t and s e a s o n a l

farm w orkers were r e f e rr e d to jo b s th a n o th e r a p p li c a n ts,

m ig ra n t and s e a s o n a l farm w orker a p p li c a n ts f i l i n g a

jo b s e r v ic e a p p l i c a ti o n s were n e a rly tw ic e as

l i k e l y to be p la c e d in jo b s a s o th e r a p p li c a n ts.

m ig ra n t and s e a s o n a l farm w orker a p p li c a n ts were

r e f e rr e d to s u p p o rtiv e s e r v i c e s a t fo u r tim e s

th e r a t e of n o n -m ig ra n t and s e a s o n a l farm w orker

a p p l i c a n ts.

p r o p o rtio n a t e ly tw ic e a s many m ig ra n t and s e a s o n a l

farm w orkers r e c e iv e d jo b developm ent a ssist a n c e

a s n o n -m ig ran t and s e a s o n a l farmworker a p p li c a n ts,

m ig ra n t and s e a s o n a l farm w o rk e rs were 34 p e r c e n t

more li k e l y th a n o th e r a p p li c a n ts to r e c e iv e some

s e r v ic e (jo b r e f e r r a l , jo b d ev e lo pm e n t, t e s t i n g ,

c o u n s e lin g , r e f e r r a l to tr a i n i n g and r e f e r r a l

to s u p p o rtiv e s e r v ic e s) from a S t a t e JS o f fi c e .
203

We b e li e v e o u r a c t i o n s , in te rm s o f s p e c i a l em pha se s

and F e d e r a l o v e rsi g h t a t t e n t i o n , d e m o n str a t e o u r com m it

raent to a d d r e ssin g th e em ploym ent n e e d s o f m ig r a n t

and s e a s o n a l fa rm w o rk e rs and th e r e s u l ts , in te rm s

o f th e l e v e l o f s e r v i c e s p r o v id e d , a t t e s t to th e s u c ­

c e ss o f o u r e f f o r ts . In a d d i t i o n to th e b a si c em p lo y ­

m ent s e r v i c e s p ro v id e d by USSS u n d e r th e W a g n e r-P e y s e r

A c t, th e USES a ls o a d v is e s th e Im m ig r a tio n and N a t u r a li

z a ti o n S e r v i c e r e g a r d in g c e r t i f i c a t i o n o f e m p lo y e r's

r e q u e st f o r tem p o ra ry f o r e ig n a g r i c u l t u r a l la b o r u n d e r

th e Im m ig ra tio n and N a ti o n a l it y A c t. Under t h is p r o ­

gram , th e USES is r e s p o n sib l e f o r e n s u rin g t h a t farm

o p e r a t o rs r e c r u i t a l i e n w o rk e rs o n ly a f t e r a str e n u o u s

s e a r c h fo r d o m e stic w o rk e rs and o n ly i f p r e v a i l i n g

w ages and jo b c o n d itio n s a r e o f f e r e d .

In c o n si d e rin g r e q u e sts f o r te m p o ra ry l a b o r c e r t i ­

f i c a t i o n s in a g r i c u l t u r e , th e D e p a rtm e n t r e c o g n i z e s

i t s d u a l r e s p o n s i b i l i t y to s a f e g u a r d em ploym ent o p p o rt u n i t i e s a t f a i r w ages and s a f e w o rk in g c o n d iti o n s

f o r A m erican w o rk e rs w h ile a ss u rin g a d e q u a te l a b o r

s u p p li e s fo r g ro w e rs. In 1 9 7 8 , a p p r o x im a t e ly 1 5 ,4 4 1

c e r t i f i c a t i o n s f o r tem p o ra ry a g r i c u l t u r a l w o rk e rs w ere
204

iss u e d to s u p p lem e n t th e A m e ric an w o r k f o r c e . The numb e r was down from th e 2 0 ,6 0 0 c e r t i f i e d in 1 9 7 4 , r e p r e ­

s e n tin g a c o n ti n u in g tr e n d to w a rd in c r e a s e d u se o f

d o m e stic w o r k e rs.

T h is a r e a o f a c t i v i t y is on e o f s u b s t a n t i a l c o n ­

tr o v e rs y and a number o f law s u i ts h av e r e s u l t e d .

T he se l e g a l a c t i o n s h av e b e en in c lu d e d in th e l i s t ,

o f l a w s u i ts p r o v id e d to th e C om m itte e .

The Jo b S e r v i c e a ls o p e rf o rm s s e v e r a l o th e r s p e c if i c a c t i v i t i e s d e sig n e d to e n s u r e t h a t em p lo y e rs who

u s e th e i n t e r s t a t e c l e a r a n c e s y ste m to r e c r u i t w o rk e rs

m eet c e r t a i n c o n d i t i o n s . T h is is d one to p r o t e c t th o s e

w o rk e rs r e c r u i t e d th ro u g h th e JS s y ste m . T h e se a c t i v i ­

t i e s in c l u d e :

1 . The c o n d u c t o f re o c c u p a n c y h o u sin g i n s p e c ti o n s

o f a l l h o u sin g u se d by a g r i c u l t u r a l em p lo y e rs

who p l a c e jo b o r d e rs in th e c l e a r a n c e s y stem .

2 . F i e l d c h e c k s on a sam p le o f a g r i c u l t u r a l c l e a r ­

a n c e o r d e rs w here th e Jo b S e r v i c e h a s p la c e d m ig r a n t

and s e a s o n a l fa rm w o rk e rs in o r d e r to v e r if y t h a t

th e w a g e s, w o rk in g c o n d i t i o n s , h o u rs and h o u sin g

a r e s t a t e d on th e jo b o r d e r .
205

3 . D e te rm in in g i f fa rm l a b o r c o n tr a c t o rs p o ss e ss

a v a l i d c e r t i f i c a t e o f r e g is tr a t i o n iss u e d p u rs u a n t to th e Farm Labor C o n tr a c to r R e g is tr a t i o n

A ct p r i o r to p r o v id in g jo b s e r v i c e s .

T h e s e a c t i v i t i e s o f USES - th e p re o c c u p a n c y h o u sin g i n s p e c ti o n s and random f i e l d c h e c k s and v e r i f i c a ­

t i o n o f c o n tr a c t o r r e g is tr a t i o n - a r e c o o r d i n a t e d w ith

th e Employment S ta n d a r d s A d m in istr a ti o n (ESA) and th e

O c c u p a tio n a l S a f e ty and H e a lth A d m in istr a ti o n (OSHA).

T h is c o o r d i n a ti o n is p a r t i c u l a r l y im p o rt a n t si n c e th e

JS is n o t an e n fo r c em e n t ag en cy and h a s no s a n c t i o n

a u t h o r i t y o t h e r th a n n o t s e r v in g th e e m p lo y e rs. ESA

and OSHA a r e th e l e g a l e n fo r c e m e n t a g e n c i e s.

We hav e r e c e n t l y re v iew e d o u r c o o r d i n a ti o n e f f o r ts

in th e a r e a o f m ig r a n t h o u sin g . T h is h a s r e s u l t e d

in a new in t e r a g e n c y a g re em e n t e s t a b l is h i n g im p ro v ed

p r o c e d u r e s f o r c o o r d i n a ti n g h o u sin g i n s p e c ti o n s among

OSHA, ESA and JS a g e n c i e s. As Mr. B e rrin g to n e x p l a i n e d

in e a r l i e r t e stim o n y , th e s e p r o c e d u r e s a r e d e sig n e d

to e lim i n a t e d u p li c a ti o n and o v e rl a p th ro u g h th e c o ­

o r d i n a t e d t a r g e t i n g o f h o u sin g i n s p e c ti o n s, to s h a r e

i n s p e c ti o n in f o rm a tio n among a g e n c i e s, and to r e f e r

u n s a f e h o u sin g s i t u a t i o n s to th e a p p r o p r i a t e a g e n c y

w ith e n fo r c e m e n t j u r is d i c t i o n and s a n c ti o n p o w e rs.
206

Im p lem e n ta tio n o f th e s e new im proved h o u sin g in s p e c ­

tio n p ro c e d u r e s w ill be m o n ito re d by R e g io n a l M ig ran t

C o o rd in a tin g C om m itte e s, c h a ir e d by ESA, and e st a b lis h e d

by th e D epa rtm ent in 1977. As Mr. D e rrin g to n t e s t i f i e d

e a r l i e r , th e s e a r e th e same com m itte e s which p ro v id e

o v e r a l l c o o r d in a tio n in th e D e p a rtm e n t's e f f o r ts to

p ro v id e q u a li t y s e r v i c e to m ig ra n ts and s e a s o n a l

fa rm w o rk e rs.

The D epa rtm ent o f Labor c o o r d in a te s w ith o th e r

F e d e r a l a g e n c ie s such a s, th e D ep a rtm en t o f A g ric u ltu r e

th e Community S e r v ic e s A d m in istr a tio n , th e D epa rtm ent

o f Housing and Urban D evelopm ent, w here s p e c if i c p ro ­

gram r e s p o n s i b i l i t i e s a re c lo s e ly r e l a t e d . For exam ple ,

th e D epartm ent r e c e n tly sig n e d an ag re em en t w ith th e s e

a g e n c ie s c a ll i n g fo r j o i n t e f f o r ts d ir e c t e d a t im proving m ig ra n t and s e a s o n a l farm w orker h o u sin g . That

a g re em e n t, e f f e c t i v e O c tobe r 1, 1979, t a r g e ts funds

on a c o o rd in a te d b a sis to 31 n o n p r o fit, community b a sed

o r g a n i z a tio n s th ro u g h g r a n ts fo r th e c o n str u c ti o n and

r e h a b i l i t a t i o n o f m ig ra n t h o u sin g .

Madam Chairw oman, t h is c o n c lu d e s my p re p a r e d s t a t e ­

m ent. I would be p le a s e d to answ er any q u e stio n s th a t

you may hav e .
APPENDIX

Attached is a list of actions which migrant group

have pending against the Department of Labor as o

November 1, 1979.
208

A. N a tio n a l C o n g re ss o f H is p a n ic Am erican C i ti z e n s

v . F . Ray M a rs h a ll (C .A .D .C . No. 7 9 -1 2 2 8 ).

3 . P l a i n t i f f a ll e g e d t h a t in n o t iss u in g s t a n ­

d a r d s f o r f i e l d s a n i t a t i o n , farm s a f e t y e q u ip ­

m e n t, r o l l o v e r tr a c t o r p r o t e c t i o n , p e rs o n a l

p r o t e c t i v e e q u ip m e n t, and n u is a n c e d u st and

n o is e f o r a g r i c u l t u r e , th e S e c r e t a r y had a b u s e d

h is d is c r e t i o n and u n la w f u lly w ith h e ld and

u n r e a s o n a b ly d e la y e d a g e n c y a c ti o n in v i o -' ‘

l a t l c r . o f 5 U .S .C . 706 (APA) and v i o l a t e d th e

tim e p r o v isio n s o f s e c ti o n 6 ( b ) ( l) - ( 4 ) o f

th e OSH A ct (29 U .S .C . 655 (b) ( 1 )- ( 4 ) .

C- I n j u n c t i o n s o u g h t d ir e c t i n g th e S e c r e t a r y

to ino.ua th e st a n d a r d s.

D. D ieno in n C o u rt found f o r th e p l a i n t i f f (425

Z- Z one. 303 (D.D.C. 1 9 7 5 )} ; D.C. C ir c u i t

r e v e rs e d and remanded (554 F. 2d 1196 (C.A .D .C.

1 9 7 7 .. On remand th e D is t r i c t C o u rt found

f o r nhe p l a i n t i f f s (D .D .C ., C i v il A c tio n No.

2141—7 2 , d e c id e d 1 2 /2 1 /7 3 ) . The S e c r e t a r y

c o r n i c e d a st a y from th e D.C. C ir c u i t (C .A .D .C .,

No. 7 9 -1 2 2 3 ). The c a s e h a s been b ri e f e d and

a rg u e d in th e D.C. C ir c u i t C o u rt o f A p p e a ls

and we a w a it a d e c isi o n .
209

NA.AC? v. M a rs h a ll (D.D.C. C i v il A c tio n No. 2010-72)

Farm w orker o r g a n i z a ti o n s and i n d i v i d u a l fa rm w o rk e rs

3-.=o th e S e c r e t a r y , th e A ssist a n t S e c r e ta r y o f Labor

r o r Manpower, th e D eputy A ssist a n t S e c r e ta r y f o r Manpow er, th e A ss o c ia te Manpower A d m in istr a to r, th e D ir e c -

r c r oh U n ite d S t a t e s Employment S e r v i c e , and th e D ir e c -

r r r o f th e R u r a l Manpower S e r v ic e o f th e U n ite d S t a t e s

em ploym ent S e r v i c e .

- oomprarnc. m e rg e d th e U n ite d S t a t e s Employment

le rm io e (ES^ " d e l a t e d p l a i n t i f f s r i g h ts under th e F if t h

Amendment, .r o l e Vu o p C i v il R ig h ts Act of 1964, th e

Im m ig ra tio n a r.r N a t u r a li z a ti o n Act and r e g u l a tio n s

th e r e u n d e r arm th e W ag n e r-P ey se r Act and r e g u l a ti o n s

m o e re u n d e r. cy ap p ro v in g program, o p e r a tio n s and p r o -

v u c in g r i n s m i a l s u p p o rt f o r S t a t e r u r a l manpower s e r ­

v ic e s and em ployment s e r v i c e s w h ile th e s e S t a t e a g e n c ie s

engaged in r e m a i n d is c rim in a to r y p r a c t i c e s .

The D is t r i c t C o u rt h e ld f c r th e p l a i n t i f f , NAACP v .

M a rs h a ll, 1=1 F . S up?. 1C0S, 1010-1111 (D.D.C. 1 9 7 3 ).

The C o u rt remmd t h a t d e f e n d a n ts v i o l a t e d p l a i n t i f f s '

r i g h t u n d e r th e F ift h Amendment and th e C i v il R ig h ts

A ct and th e N a g n e r-P e y s e r A ct to r e c e iv e th e s e r v i c e s

p ro v id e d hy th e R u ra l Manpower S e r v ic e (RMS) and ES

u n e n m r.b e r e f hy d is c rim i n a ti o n . The C o u rt e n t e r e d

an i n j u n c ti o n p r o h i b iti n g d e f e n d a n ts from d is c rim in a ­

tio n o r e t h e r u n la w fu l p r a c t i c e s a g a i n st m ig ra n t f a rm ---

w o rk e rs. On A u g u st 3 , 1 974, th e C o u rt e n te r e d a c o n s e n t

o rd e r p ro p o s e d by th e p a r t i e s w hich im plem ented th e

C o u rt's e a r l i e r o r d e r. In 1973 p l a i n t i f f s renew ed

t n e ir l i t i g a t i o n in th e D is tr i c t C o u rt w ith th e i n t e n t

o f (1; b ro a d e n in g th e sco p e o f r e l i e f p ro v id e d by th e

C r u r t 's o r d e rs and (2) d e m o n str a tin g t h a t th e S e c r e t a r y

had f a i l e d to comply w ith th e C o u rt's o r d e rs. The

p a r r i e s a r e p r e s e n tl y n e g o ti a ti n g a r e s e ttl e m e n t o f •

th e c a s e .
210

A. P e d ro de l a F u e n te v . ICC, DOT, Department: o f

L a b o r, S to k e ly Va n Camo , e t a l U. S . D. C. ■ED I l l . ,

C»A. Ko. CV 7 8 -0 0 9 0 -D .

3. P l a i n t i f f a l l e g e s t h a t th e f e d e r a l a g e n c ie s f a i l e d

to e n f o r c e a p p l i c a b l e s t a t u t o r y p r o v isio n s and

r e g u l a t i o n s d e a lin g w ith h e a lt h and s a f e t y o f

d a r n w o rk e rs tr a n s p o rt e d i n t e r s t a t e to and from

I l l i n o i s sin c e 1577.

I . P l a i n t i f f in. th e c l a s s a c ti o n se e k a d e c l a r a t o r y

i n j u n c tio n . a g a i n st th e f e d e r a l a g e n c ie s and m o n e ta ry

r e l i e f f r e e p r i v a t e d e f e n d a n ts.

I L is c o v e r y is now in p r o g r e ss.

A. N a z a rio G u e rre ro v. Ram iro G a rz a , J r ■, e t a l U .S.D .G .

KD W is e ., C .A ., No. 7 5 -C -3 9 9 .

P l a i n t i f f a l l e g e s t h a t th e D e p a rtm e n t of Labor

h a s f a i l e d to e n f o r c e FLCRA in r e g a rd to h o u sin g ,

h ir i n g and r e c r u i t i n g .A ls o , th e r e is an iss u e

a s to who is th e p r o p e r p l a i n t i f f .

_ n j u r c t i v e r e l i e f , d e c l a r a t o r y ju d gm e n t, and m onetary

d am a g e s.

The c l a i c s o f p l a i n t i f f G u e rr e ro a g a in st th e F e d e r a l

• c e r e n c e n rs w ere d ism iss e d w ith p r e ju d i c e by s t i p u ­

l a t i o n f o llo w in g p a r t i a l t r i a l o f th e c a s e (December

1 5 7 3 ';. P l a i n t i f f moved to amend th e c o m p la in t

ro a f f a new g roup o f p l a i n t i f f s c a ll e d th e "R iv e ra

c a m l l y .’ Leave was g r a n t e d . PO L's m o tio n fo r

r e c o n v e n e a tio .n and w ith d r a w a l o f le a v e g r a n te d

p l a i n t i f f co amend th e c o m p la in t, o r in th e a l t e r ­

n a t i v e f o r an o r d e r d is m issin g th e c o m p la in t,

is now p e n d in g . B r i e fs a r e due November 15, 1979.
211

A- Cantu v . Owatanna Cam m ing Co. , 3 -7 6 -3 7 4 , DC

MN

3 . C h a lle n g e s ETA o v e rsig h t o f m isle a d in g jo b o r d e rs

and th e c o m p la in t s y stem . The jo b o r d e rs a r e

a ll e g e d to be m isle a d in g in t h a t th e y do n o t d e t a i l

th e paym ent sy stem s u f f i c i e n t l y and fa rm w o rk e rs

w ere u n d e r p a id . -

I . I n j u n c t i v e r e l i e f s o u g h t.

3 . In d is c o v e r y .

A. Cruz v. P io n e e r H iB re d , B-79-115 SD TX.

3 . C h a lle n g e s ETA- o v e rsig h t o f m isle a d in g jo b o r d e r

in t n a t th e jo b o r d e rs a r e a lle g e d to have o ff e r e d

h o u sin g when none was a v a i l a b l e , and th e c o m p la in t

sy stem i n t h a t c o m p la in ts f i l e d w ith th e T ex a s

Employment Com mission a r e a ll e g e d to have been

m is h a n d le d .

3 - I n j u n c t i v e r e l i e f s o u g h t.

I - C a se p e n d in g .

A. _ Ma r t i n e z v. P io n e e r H i3 r e d , B-79-28 S.D . TX.

3 . C h a lle n g e s ETA o v e rsig h t o f m isle a d in g jo b o r d e r

and th e c o m p la in t s y stem . The a l l e g a ti o n s a r e

e s s e n t i a l l y sim il a r to th o s e .in Cruz v . P io n e e r

5 i 3 r e d .

I n j u n c t i v e r e l i e f .s o u g h t. > .

3 . C a se p e n d in g .

A. M o lin a v . M a rs h a ll, 78 -0 5 5 1 D.C. C o u rt o f A p p e a ls.

C h a lle n g e s th e d e l e ti o n in 1977 and th e r e p r o m u lg a ti o n o f th e ES h o u sin g sta n d a r d s a s v i o l a t i n g

th e A3A. P l a i n t i f f a ls o c la im s a r i g h t to p r e o c c u

p a n c y h o u sin g i n s p e c ti o n s sin c e D ep a rtm en t h a s

a lw a y s done them.

I n j u n c t i v e r e l i e f .

EOL won d is t r i c t c o u rt; now on a p p e a l.
212

Lopez R iv a s v . M a rs h a ll, e t . a l 78-2175 D.C. P .R .

e e k s r e l i e f f o r P u e rto R ican s l e f t b eh in d in

- e r t o Rico d u rin g th e 78 a p p le h a r v e st,

am ac es a g a i n st th e g ro w e rs, u n c le a r a g a i n st th e

(fi 0. f1- (I) P e n d in g on. m o tio n to d is m iss.

B e rrio s v t M a rs h a ll, D, C. Ar i z .

P l a i n t i f f c la im s c e r t i f i c a t i o n f o r f o r e ig n la b o r

s h o u ld n o t be g iv e n b e c a u s e a s tr i k e e x is ts .

L. S .R .Q . i s s u e d ' h e a r in c com ing up.

A• R iv e r a v . M a rs h a ll, B -7 7 -1 1 5 .S .D . TZ.

3 . C h a lle n g e s ETA o v e rsi g h t o f m isle a d in g jo b o r d e rs

and th e c o m p la in t s y stem . P l a i n t i f f c la im s t h a t

he and h is crew a c c e p te d a jo b o rd e r and th e n

had i t c a n c e ll e d j u s t b e f o r e th e tim e th e y w ere

to s t a r t .
213

A. Lerma v . S to k sle y Van Camp, 76C 3352 N.D. I l l .

3 . C h a lle n g e s ETA o v e rsig h t o f m isle a d in g jo b o r d e rs

and th e c o m p la in t sy stem . The jo b o r d e rs a r e

c h a ll e n g e d f o r b e in g m isle a d in g a b o u t th e a v a i l a ­

b i l i t y o f work and w o rk in g c o n d itio n s. J.t is

.. a ls o ...a lle g e d . that..ETA and th e I l l i n o is State..Em p-lo.y-. —.

m a rt S e r v ic e d id n o t p r o p e rly rev iew th e "job o r d e r

t o d e te rm in e what wages s h o u ld be p a id ..

C. I n j u n c t i v e r e l i e f s o u g h t.-

C- T e n d in g n r morion'' to d is m iss.

H e ste a d v . M a rshal l , 79-3634-CIV-WKH,

C.C. S.D . F l a . , f i l e d 1 0 /9 /7 9

■-he p l a i n t i f f (th e a tt o r n e y f o r F lo ri d a R u r a l L e g a l

S e r v i c e s) s e e k s FLSA in f o rm a tio n u n d e r th e FOIA.

The plaintier asks that the "court order 'the in’for"-

me.rf.on released.

C rs t file d .."

| Whereupon, at 12:40 p.m., the hearing was adjourned, to reconvene subject to the call of the Chair.]

A P P E N D I X E S

APPENDIX 1.—STATEMENT OF THE NATIONAL FOOD

PROCESSORS ASSOCIATION

NpR

National Food Processors Association

1133 Twentieth Street N.W., Washington, D.C. 20036

Telephone 202/331-5900

Legislative Affairs Division

Richard W. Murphy

Director/Vice President

202/331-5939

29 November 1979

RECSIVFD

DEC 4 '579

The H onorable C a rd iss C o llin s

Chairwoman, Subcommittee on

Manpower and Housing

Government O p e ra tio n s Committee

House o f R e p r e s e n ta tiv e s

W ashington, DC 20515

Dear Congresswoman C o llin s:

R e c e n tly y o u r subcom m ittee c o n d u c ted a h e a rin g on th e Lab o r D e p a rtm e n t's

im p lem e n ta tio n o f th e Farm Labor C o n tr a c to r R e g istr a tio n A c t. Many o f o u r

members have been co n ce rn ed a b o u t th e D e p a rtm e n t's im p lem e n ta tio n o f th e A c t.

When th e h e a rin g was announced, we h ad in q u ir e d i f th e a ss o c i a tio n

would be g iv e n an o p p o rtu n ity t o t e s t i f y . We w ere t o l d t h a t th e w itn e ss

l i s t was c lo s e d b u t were a d v is e d by th e s t a f f t h a t we c o u ld p ro v id e

w ritt e n te stim o n y to be in c lu d e d in th e h e a rin g r e c o r d .

A tta c h e d is o u r w ritt e n st a t e m e n t. We would a p p r e c i a t e i f you would

have i t in c lu d e d in th e h e a rin g r e c o r d .

Thank you.

R ic h a rd W. Murphy

cc to : Congressman Wayne G risham

(215)
216

STATEMENT OF THE

NATIONAL FOOD PROCESSORS ASSOCIATION

BEFORE THE

HOUSE SUBCOMMITTEE ON MANPOWER AND HOUSING

REGARDING THE

FARM LABOR CONTRACTOR REGISTRATION ACT

Thank y o u f o r th e o p p o r t u n i t y t o t e s t i f y r e g a r d i n g t h e im p l e m e n t a tio n

o f t h e Farm L a b o r C o n tr a c t o r R e g is tr a t i o n A c t (FLCRA) b y t h e D e p a rtm e n t o f

L a b o r.

The N a ti o n a l F o od P r o c e ss o rs A ss o c i a ti o n (NFPA) h a s 582 fo o d p r o c e s s i n g

members who p r o d u c e o v e r n i n e t y p e r c e n t o f t h e n a t i o n 's c a n n e d f r u i t , v e g e t a b l e ,

m e a t, f is h a n d s p e c i a l t y p r o d u c ts an d a s u b s t a n t i a l p o r t i o n o f o t h e r fo o d p r o ­

d u c ts . NFPA, f o rm e rl y t h e N a ti o n a l C a n n e rs A ss o c i a ti o n (NCA), a p p r e c i a t e s t h e

o p p o r t u n i t y t o t e s t i f y on a m a tt e r t h a t c o n c e r n s many o f o u r m em bers.

Some members o f NFPA em ploy m i g r a n t w o r k e rs who p e rf o rm f i e l d o p e r a t i o n s .

M ost members o f NFPA em p lo y w o r k e rs who a r e n o t tr u e m i g r a n ts , b u t a r e c o n si d e r e d

t o b e m ig r a n t w o r k e rs by th e L a b o r D e p a rtm e n t u n d e r FLCRA, e v e n th o u g h th e y may

b e p e rm a n e n t em p lo y e e s a n d r e s i d e l o c a l l y , a n d e v e n th o u g h th e y a r e n o t f a rm ­

w o r k e rs, b u t w o rk a t th e p r o c e ssi n g p l a n t .

The N a ti o n a l F o od P r o c e ss o rs A ss o c i a ti o n b e l i e v e s t h a t a l l e m p lo y e e s i n

o u r i n d u s tr y , i n c l u d i n g m i g r a n t w o r k e rs, s h o u ld b e t r e a t e d h um a n e ly a n d f a i r l y .

We u r g e o u r m em bers t o do s o . The f a i r tr e a tm e n t a n d c o m p e n s a tio n o f a l l

em p lo y e e s i s e s s e n t i a l t o m a in t a in h ig h l e v e ls o f p r o d u c t i v i t y a n d h ig h s t a n ­

d a r d s o f w o rk .

T h e re a r e many p r o t e c t i o n s i n law t o e n s u r e e q u i t a b l e jo b c o n d i ti o n s

f o r a l l em p lo y e e s o f p r o c e s s o rs , i n c l u d i n g m i g r a n t w o r k e rs. NFPA s u p p o rts

th e l e g i t im a t e p r o t e c t i o n s a ff o r d e d b y t h e s e l a w s , w h ic h in c l u d e t h e F a ir

L a b o r S t a n d a r d s A c t, t h e W a g n e r-P e y s e r A c t, t h e O c c u p a tio n a l S a f e t y an d

H e a lth A c t, s t a t e v e h i c l e s a f e t y an d i n s u r a n c e l a w s, a n d s t a t e c o n tr a c t la w .

M is i n t e r p r e t a t i o n b y L a b o r D e p a rtm e n t

I n 1 9 6 3 , t h e C o n g r e ss p a ss e d th e Farm L a b o r C o n tr a c t o r R e g is tr a t i o n

A c t t o p r o t e c t m i g r a n t w o r k e rs from a b u s e s by " c rew l e a d e rs " o r " f a rm l a b o r

c o n tr a c t o rs " . The s e c t i o n on C o n g r e ssio n a l f i n d i n g s s t a t e s , "The C o n g r e ss

h e r e b y f i n d s t h a t . . . / t h e r e a r e / c e r t a i n ir r e s p o n s i b l e c o n tr a c t o rs f o r

t h e s e r v i c e s o f m i g r a n t a g r i c u l t u r a l l a b o r e rs who e x p l o i t p r o d u c e rs o f

a g r i c u l t u r a l p r o d u c ts , m ig r a n t a g r i c u l t u r a l l a b o r e rs a n d t h e p u b l i c g e n e ra l l y . . . " (em p h a sis a d d e d ).

The C o n g r e ss i n 1974 am ended t h e A c t. As a r e s u l t o f t h e L a b o r

D e p a rtm e n t's u n e x p e c t e d a n d u n w a rr a n te d i n t e r p r e t a t i o n o f th o s e am en dm e n ts,

many o f o u r m em b e rs, who a r e p r o d u c e rs o f a g r i c u l t u r a l p r o d u c ts , now f i n d

t h a t , i n s t e a d o f b e i n g p r o t e c t e d by t h e A c t, t h e y a r e b e i n g r e q u ir e d t o

r e g i s t e r u n d e r i t .

T h is i s due t o t h e L a b o r D e p a rtm e n t's i n t e r p r e t a t i o n a n d im p lem en ­

t a t i o n o f tw o 1974 am endm ents t o s u b s e c ti o n s 3 ( b )( 2 ) an d 3 ( b ) ( 3 ) . S u b s e c ti o n

3 ( b )( 2 ) s t a t e s t h a t th e t e rm " f a rm l a b o r c o n tr a c t o r " s h a l l n o t i n c l u d e " a n y
217

fa rm e r, p r o c e ss e r, c a n n e r, g in n e r, p a c k in g sh ed o p e r a t o r, o r n u rse rym a n who

p e rs o n a lly e n g ag e s in any such a c t i v i t y f o r th e p u rp o s e o f s u p p ly in g m ig r a n t

w o rk e rs s o l e l y f o r h is own o p e r a tio n . " The word " p e rs o n a lly " was a d d ed in

1974 to th e s u b s e c tio n . A ccording t o th e D ep a rtm e n t, no c o r p o r a tio n can a c t

" p e rs o n a lly " , even tho u g h th e Act d e fin e s a " p e rs o n ” to in c lu d e a c o r p o r a tio n .

By t h is r e a s o n in g , th e Labor D epartm ent r e q u ir e s c o r p o r a tio n s who employ

"m ig ra n t w o rk e rs " t o r e g is t e r u n d e r th e A c t, b u t n o t n o n - c o rp o r a te e n t i t i e s .

S u b s e c tio n 3 ( b )(3) s a y s t h a t "any f u ll-tim e o r r e g u l a r employee o f any e n t i t y

r e f e rr e d t o in . . . /s u b s e c tio n 3 ( b )(217 who engages in such a c t i v i t y s o l e l y

f o r h is em p lo y e r on no rrore th a n an in c i d e n t a l b a sis " is n o t a fa rm l a b o r

c o n tr a c t o r. The D ep artm en t h a s i n t e r p r e t e d th e s u b s e c tio n to mean t h a t a lm o st

any c o n t a c t be tw een an employee and a "m ig r a n t w orker" is more th a n " an i n c id e n t a l b a sis " , s o t h a t v ir t u a l l y any em ployee o f a p r o c e ss o r o r c a n n e r, who

d e a ls w ith a m ig r a n t w o rk e r, m ust r e g is t e r .

We b e li e v e th e s e i n t e r p r e t a t i o n s a r e i n c o rr e c t and hav e r e s u lt e d in

th e m is a p p lic a tio n o f th e law . There have b e en s e v e r a l f e d e r a l d is t r i c t

c o u rt c a s e s on th e s e p o i n ts , e s p e c i a lly on s u b s e c tio n 3 ( b ) (2 ). In a l l

c a s e s b u t o n e , to o u r k n ow led g e , th e c o u rts have r u l e d a g a i n st th e Lab o r

D e p a rtm e n t's i n t e r p r e t a t i o n . *

The D e p a rtm e n t's i n t e r p r e t a ti o n o f s u b s e c tio n 3 (b )(2 ) and 3 ( b ) ( 3 ),

in c o n ju n c tio n w ith th e d e f i n iti o n o f "m ig r a n t w o rk e r" , h a s m a jo r im p lic a ­

ti o n s . I f i t s i n t e r p r e t a t i o n is c o r r e c t, a huge number o f a g r i c u l t u r a l

p ro d u c e rs and p r o c e ss o rs w ould have t o r e g is t e r and comply w ith th e

a tt e n d a n t f i l i n g s and r e q u ir e m e n ts, a f a c t w hich th e Labor D epartm ent

has n o t made t h is commonly known th ro u g h o u t th e a g r i c u lt u r a l s e c t o r .

*The fo llo w in g c a s e s d e c id e d by fi v e d if f e r e n t D is tr i c t J u d g e s have

r e j e c t e d th e i n t e r p r e t a t i o n s o f S e c tio n s 3 (b )(2 ) and f o r 3 (b )(3 ) p u t f o r ­

ward by th e D ep artm en t o f Labor:

M a rs h a ll v . H e rrin g e r R an ch e s, I n c . , 466 F . Supp. 285

(E.D. C a l ., F e b ru a ry 2 7 , 1 9 7 9 )(S e c tio n s 3 (b )(2 ) and 3 ( b ) ( 3 ) ) (H auk,

J .) ;

U se ry v . Param ount C itr u s A ss o c ., I n c . , CV 76-1544-WMD,

M a rsh a ll v . S a n ta C la r a P ro d u c e , I n c . , CV 77-1899-WMB (C. D. C a l .,

F e b ru a ry 1 5 , 1 9 7 9 )(S e c tio n 3 ( b ) ( 2 ) ) (B y rn e , J . ) ;

M a rs h a ll v . Green Goddess Avocado C o rp o r a tio n , 84 CCH

Labor Case 3 3 ,7 1 2 (S. D. C a l., A ugust 3, 1 9 7 8 )(S e c tio n 3 ( b )( 2 ))

(E n rig h t, J . ) ;

J e n k in s v . S & D C h a iss a n & S o n s, I n c . , 449 F . Supp 216

(S. D. N. Y. 1 9 7 8 )(S e c tio n 3 ( b ) ( 2 ) ) (W e rk e r, J .) .

M a rs h a ll v . S il v e r Creek P a c k in g C o ., 83 CCH L a b o r Case

33,615 (E.D. C e il., A ugust 23 , 1977) (S e c tio n 3(b) (2)) (C ro c k e r, J . ) .

The fo llo w in g c a s e h a s a c c e p te d th e i n t e r p r e t a t i o n o f S e c tio n

3 ( b )(2) p u t fo rw a rd by th e D epartm ent o f L a b o r:

M a rs h a ll v . Souza B ro th e rs P a c k in g C o ., CV-77-2353-R

(C.D. C a l ., November 28 , 1 9 7 7 )(S e c tio n 3 ( b )( 2 )).

68-643 0 - 8 0 - 1 5
218

To r e g is t e r p r o c e ss o rs and p ro d u c e rs a s fa rm l a b o r c o n tr a c to rs would

d i v e rt lim it e d r e s o u r c e s o f th e D ep artm en t away from r e g u l a tin g crew l e a d e rs

as Congress in te n d e d . I t is no d o u b t e a s i e r t o e n fo r c e th e Act a g a in st

p r o c e ss o rs and p r o d u c e rs, who a r e r e a d il y i d e n t if i e d and lo c a t e d , th a n a g a in st

bona fid e crew l e a d e rs, who may be d i f f i c u l t t o i d e n t if y o r l o c a t e .

A r b i tr a r y Im p l e m e n ta tio n

The Labor D e p a rtm e n t's i n t e r p r e t a t i o n o f th e word " p e rs o n a lly " in subs e c tio n 3 (b )(2 ) means t h a t th e a p p li c a ti o n o f th e law w i l l be m ost a r b i tr a r y .

I t means t h a t two v ir t u a l l y i d e n t i c a l p r o c e ss o rs, one a c o rp o r a tio n and th e

o th e r n o t, r e c e iv e r a d i c a l l y d if f e r e n t tr e a tm e n t u n d e r th e law . Under th e

D e p a rtm e n t's m eaning, th e c o r p o r a tio n is r e q u ir e d t o comply w ith a lo n g

l i s t o f r e q u ir e m e n ts, some o f them in a p p r o p ri a t e and u n n e c e ss a ry and some

o f them d u p li c a tiv e o f o t h e r la w s. The n o n - c o r p o r a te p ro c e ss o r’ is exem pt.

The p o s s i b i l i t y f o r two sim il a r em p lo y e rs to be tr e a t e d d if f e r e n t l y

u n d e r th e D e p a rtm e n t's i n t e r p r e t a t i o n o f th e law is n o t h y p o th e ti c a l. A

p r o c e ss o r t h a t is a p a rt n e rs h i p , f o r e x am p le , is ex em p t, w h ile a c o rp o r a te

p r o c e ss o r w ith a s im il a r s i z e , s im il a r p ro d u c t and s im il a r o p e r a tio n is n o t.

We do n o t b e li e v e such a r b i tr a r y a p p li c a ti o n o f FLCRA was in te n d e d by

C o n g re ss.

R e s u lt is Red-Tape

The b a si c im p a c t o f r e q u iri n g p r o c e ss o rs and e a r n e rs t o r e g is t e r

u n d e r FLCRA is to add t o t h e i r r e d -t a p e and p a p erw o rk b u rd e n . I t a ls o

adds an e lem e n t o f u n c e rt a in ty as to w h e th e r t h e p r o c e ss o r is in f u l l comp li a n c e w ith th e numerous item s i n th e law o r is in a d v e rt e n tly e x p o se d

to some p e n a lty . There a r e s e v e r a l item s in th e law t h a t seem u n n e c e ssa ry o r

d u p li c a ti v e , s e r v in g no p u rp o s e a sid e from h a r a ssm e n t.

Com pliance w ith th e Lab o r D e p a rtm e n t's i n t e r p r e t a t i o n o f th e Farm

Lab o r C o n tr a c to r R e g istr a tio n A ct is n o t sim p ly a m a tt e r o f r e g is tr a t i o n .

To r e g is t e r a s a farm l a b o r c o n tr a c t o r, one must be fin g e r p rin t e d . R eg istr a t i o n must be renevzed e v e ry c a l e n d a r y e a r and fi n g e r p r i n ti n g must be

r e p e a t e d e v e ry th r e e y e a rs.

The r e g is tr a t i o n c a r d must be in im m ediate p e rs o n a l p o ss e ssio n a t

a l l tim e s and i t m ust be shown p r i o r t o d e a lin g w ith anybody in th e

" c a p a c ity as farm l a b o r c o n tr a c t o r " . Anyone who is r e g is t e r e d m ust be

l is t e d in a p u b li c c e n tr a l r e g is tr y m a in ta in e d by th e S e c r e t a r y o f Labor

in W ash in g to n .

U n n e c e ssa ry R eq u irem en ts

P ro c e ss o rs fr e q u e n tly wonder why th e s e r e q u ir e m e n ts and o th e rs

a r e b e in g imposed upon them . F o r ex am p le, any p e rs o n who r e g is t e rs

must a u th o riz e th e S e c r e t a r y o f Labor a s th e la w f u l a g e n t " to a c c e p t

s e r v i c e o f summons i n any a c tio n a g a in st su ch farm l a b o r c o n tr a c to r

a t any and a l l tim e s d u rin g w hich su ch farm l a b o r c o n tr a c t o r h a s
219

d e p a rte d from th e j u r is d i c ti o n in w hich su ch a c tio n is commenced . . . " In

a d d itio n , any p e rs o n who r e g is t e rs must n o tif y th e S e c r e ta ry o f Labor w ith in

te n days o f e a c h and e v e ry a d d r e ss c h an g e .

These two r e q u ir e m e n ts, and o t h e rs , a r e a p p ro p ria te w here a crew l e a d e r

may be tr a n s i e n t and d i f f i c u l t to tr a c k . F o r a p r o c e ss o r, who is t i e d t o h is

p l a n t and would be a b s e n t from t h a t a d d r e ss f o r o n ly b r i e f p e rio d s, th e y a r e

s u p e rflu o u s. These two r e q u irem e n ts s u g g e st t h a t th e A ct was in te n d e d by

Congress t o r e g u l a t e crew l e a d e rs, and n o t p r o c e ss o rs. The same m ig h t be s a id

o f fi n g e r p rin tin g and l is t i n g in a p u b li c c e n tr a l r e g is tr y .

U n c e rta in ty in Com pliance

*

The A ct is a n ag g in g so u rc e o f u n c e rt a in ty f o r p r o c e ss o rs a s to w h e th e r

th e y a re in com pliance w ith th e law . In l a r g e p a r t , t h is is due t o th e i n t e r ­

p r e t a tio n o f th e A ct by th e Labor D e p a rtm e n t. H ere a re some e x am p le s:

» 1 . Many c o rp o r a te p r o c e ss o rs b e li e v e th e y sh o u ld n o t r e g is t e r u n d e r

FLCRA due to th e exem ption in s u b s e c tio n 3 ( b )( 2 ). They b e li e v e c o r p o r a tio n s

can a c t " p e rs o n a lly " sin c e s u b s e c tio n 3 (a ) d e fin e s "p e rso n " t o in c lu d e a

c o r p o r a tio n . This is in d ir e c t c o n f l i c t w ith th e D e p a rtm e n t's v iew . The

u n c e rta in ty f o r th e s e c o r p o r a tio n s w i l l c o n tin u e u n t i l th e q u e stio n is

fi n a ll y r e s o lv e d by th e c o u rts, th e D ep artm en t changes i t s i n t e r p r e t a t i o n ,

o r Congress c l a r if i e s th e law .

2. P ro c e ss o rs do n o t know w hich o f t h e i r em ployees s h o u ld r e g is t e r ,

i f any. Any f u ll-tim e and r e g u l a r em ployee o f a p r o c e ss o r, who d e a ls w ith

m ig ra n t w o rk e rs " s o l e l y f o r h is em p lo y e r on no more th a n an i n c i d e n t a l b a sis " ,

is exempt from r e g is tr a t i o n . Because th e Lab o r D e p a rtm e n t's i n t e r p r e t a t i o n

o f "an in c i d e n t a l b a sis " is so n a rro w , a p r o c e ss o r is alw ays f a c e d w ith th e

p o s s i b i l i t y th a t th e D epartm ent w i l l say an em ployee h a v in g some m in o r

c o n ta c t w ith a m ig r a n t w o rk e r m ust r e g is t e r . The r e s u l t o f su ch a d e te rm in a ­

tio n is a c i t a t i o n and fi n e . Because o f u n c e rt a in ty a b o u t w hat is "an

in c id e n t a l b a sis " , i t may be d i f f i c u l t i f n o t im p o ssib le t o know w h e th e r

a p ro c e ss o r is in com pliance w ith FLCRA.

3. A p r o c e ss o r o ft e n c an n o t t e l l who among h is em ployees is a

"m ig ran t w o rk e r" u n d e r FLCRA. The Labor D ep artm en t say s t h a t some p r o c e ssin g

p l a n t em ployees a r e m ig r a n t w o rk e rs b e c a u s e " a g r i c u lt u r a l employment" is

d e fin e d to in c lu d e " th e h a n d lin g , p l a n ti n g , d r y in g , p a c k in g , p a c k a g in g ,

p r o c e ssin g , fr e e z in g , o r g ra d in g p r i o r t o d e liv e r y f o r sto r a g e o f any

a g r i c u lt u r a l o r h o r t i c u l t u r a l commodity in i t s u nm an u fa c tu red s t a t e . ”

Th is b ro a d d e f i n iti o n in c lu d e s many em ployees who r e sid e l o c a l l y ,

a re p e rm a n e n tly em ployed, and a r e n o t m ig r a n t i n any s e n s e . A p r o c e ss o r

who does n o t employ any m ig r a n ts may s t i l l f a c e a c it a ti o n and fi n e b e c a u se

th e Act does n o t conform to any r a ti o n a l u n d e rsta n d in g o f w hat a m ig r a n t

» w orker i s . R a th e r, th e d e fi n iti o n o f m ig r a n t w o rk e r h in g e s on th e

a r b itr a r y and u n d e fin e d te rm "commodity i n i t s u nm a n u fa c tu red s t a t e " .

The problem is compounded by th e f a c t t h a t th e D ep artm en t a p p a r e n tly

does n o t have a c l e a r u n d e rsta n d in g o f th e la w . T h is is e v id e n t in t h a t

* en fo rc em e n t is n o t u n ifo rm o r c o n sist e n t i n a l l p a r ts o f th e c o u n try . In

one a r e a , p l a n t m anagers must r e g is t e r a s farm l a b o r c o n tr a c to rs b e c a u se
220

p r o c e ssin g p l a n t em ploye es a r e c o n sid e r e d t o be m ig r a n t w o rk e rs. In a n o th e r

a r e a , o n ly fie ld w o rk e rs a r e c o n sid e r e d t o b e m ig r a n t w o rk e rs and o n ly th o s e

s u p e r v is o rs who d e a l w ith them m ust r e g is t e r . In y e t a n o th e r a r e a , o n ly bona

fid e crew l e a d e rs who a r e n o t em ploye es o f th e p r o c e ss o r must r e g is t e r . In

many a r e a s, p r o c e ss o rs hav e n o t b e en a p p ro a ch e d t o r e g is t e r a t a l l .

A d d itio n a l Cost

Even w here p r o c e ss o rs r e g is t e r , th e y u s u a ll y fin d t h a t th e s u b st a n tiv e

p r o t e c ti o n s a ff o r d e d m ig r a n t w o rk e rs by FLCRA a r e p ro v id e d by o th e r la w s, so

t h a t th e A ct becomes d u p li c a ti v e . Even s o , th e p r o c e ss o r m ust s t i l l sp en d many

h o u rs in th e r e g is tr a t i o n p r o c e ss, f i l l i n g o u t fo rm s, stu d y in g th e la w 's r e q u ir e

m ents and e n s u rin g c om p lia n c e w ith them . In many c a s e s, p r o c e ss o rs and t h e i r

em ployees have h ad t o sp en d many h o u rs w ith Lab o r d e p a rtm e n t com p lian ce

o f f i c e rs . The tim e and e f f o r t consumed mean u n n e c e ss a ry c o st f o r p r o c e ss o rs

i n th e form o f l o s t p r o d u c ti v it y . P r o c e ss o rs w onder why t h is is n e c e ss a ry

when th e y s e e no a d d iti o n a l b e n e f it t o m ig r a n t w o rk e rs r e s u lti n g from i t .

L e g a l P r o t e c tio n s

The b a si c iss u e is w h e th e r m ig r a n t w o rk e rs have a d e q u a te p r o t e c tio n

u n d e r th e law o th e r th a n FLCRA. When we o b j e c t t o th e L a b o r D e p a rtm e n t's

r e q u irem e n t t h a t c o r p o r a t e p r o c e ss o rs and p r o c e ss o r em ployees r e g is t e r

u n d e r FLCRA, we a r e n o t a d v o c a tin g t h a t m ig r a n t w o rk e rs s h o u ld n o t have

p r o t e c tio n u n d e r th e law .

In f a c t , th e r e a re many law s t h a t p r o t e c t m ig r a n t w o rk e rs who a re

employed by p r o c e ss o rs. I t may b e h e lp f u l to c i t e some ex am p les:

1. The F a ir Labor S ta n d a rd s A ct r e q u ir e s paym ent o f th e minimum

w age, r e q u ir e s r e c o rd k e e p in g , and p ro v id e s f o r c e r t a i n f a i r jo b c o n d itio n s.

2 . The W ag n e r-P e y se r Act r e q u ir e s , p r i o r t o employment, a w ritt e n

sta t e m e n t o f jo b c o n d itio n s to em ployees h ir e d th ro u g h th e i n t e rs t a t e employment

s e r v i c e . Some s t a t e s r e q u ir e su ch sta t e m e n ts f o r a l l m ig r a n t w o rk e rs.

3. The O c c u p a tio n a l S a f e ty and H e a lth Act p ro v id e s f o r s a f e and

a d e q u a te h o u sin g , and f o r s a f e and h e a lth y w o rk in g c o n d itio n s.

4 . The U. S. D ep a rtm e n t o f T r a n s p o rt a tio n A.ct p ro v id e s f o r th e

s a f e i n t e r s t a t e tr a n s p o r t a ti o n o f w o rk e rs. The s t a t e s a ls o r e g u l a t e th e

tr a n s p o rt a ti o n o f w o rk e rs and v e h i c l e and d r i v e r s a f e t y .

5. The F e d e r a l Unemployment Tax A ct r e q u ir e s m ost p r o c e sss o rs to

pay unemployment in s u r a n c e t a x e s t h a t w ould c o v e r m ig r a n t w o rk e rs.

6 . The S o c ia l S e c u rity A ct r e q u ir e s r e c o rd k e e p in g and payment o f

s o c i a l s e c u rit y t a x e s.

7. The Farm Lab o r C o n tr a c to r R e g istr a tio n A c t, even i f a p r o c e ss o r

d id n o t have t o r e g is t e r , r e q u ir e s him to k e e p c om p le te p a y r o ll r e c o rd s f o r

any m ig r a n t crew (S ec . 14) and a ls o r e q u ir e s him to e n s u r e t h a t any crew

l e a d e r he c o n tr a c ts w ith is i n f u l l c om p lia n c e w ith th e Act (S ec. 4 ( c )) .
221

8. C o n tr a c t law s r e q u ir e t h a t any p rom ise— o r a l o r w ritt e n — o f jo b

c o n d itio n s must be liv e d up to by a p r o c e ss o r.

Two l e g a l c a s e s, c i t e d a t th e h e a rin g on November 13, w e ll d em o n stra te

th e p r o t e c ti o n s a v a il a b l e t o m ig r a n t w o rk e rs u n d e r law s o th e r th a n FLCRA.

The f i r s t c a s e , Abraham v . B e a tric e Foods Co. , in v o lv e d a ll e g a ti o n s o f

m isr e p r e s e n t a tio n o f w ork in g c o n d itio n s. The c a s e was p u rs u e d u n d e r th e

W ag n e r-P ey se r Act and an o u t- o f- c o u rt s e ttl e m e n t was r e a c h e d .

The second c a s e , C antu v . Owatonna Canning Company, h a s n o t y e t been

t

s e t t l e d . However, i t is c l e a r a t t h is p o in t t h a t th e main iss u e f a l ls u n d e r

th e W ag n e r-P ey se r A c t. W hile c h a rg e s have b e en b ro u g h t u n d e r FLCRA, th e

l a w s u it would n o t be a ff e c t e d by th e c l a r if i c a t i o n

1o f th e ex em p tio n s in

s u b s e c tio n s 3 ( b )(2) and 3 ( b ) (3 ).

v In s h o rt, th e r e q u ir e m e n t f o r p r o c e ss o rs t o r e g is t e r u n d e r FLCRA

p ro v id e s no si g n ifi c a n t a d d iti o n a l p r o t e c ti o n to m ig r a n t w o rk e rs, y e t i t

adds to th e com pliance b u rd e n s f o r th e i n d u str y .

The D epartm ent spends a g r e a t d e a l o f i t s r e s o u r c e s on c iti n g

p r o c e ss o rs and t h e ir em ployees f o r f a i l u r e t o r e g is t e r . Th is re d u c e s th e

a v a i l a b i l i t y o f com p lian ce o f f i c e rs to c o n tr o l b o n a fi d e crew l e a d e rs,

p a r t i c u l a r l y th o s e who a r e s u b st a n tiv e v i o l a t o rs o r r e p e a t o ff e n d e rs. A

change in th e D e p a rtm e n t's i n t e r p r e t a ti o n o f s u b s e c tio n s 3 (b )(2 ) and 3 ( b ) ( 3 ),

o r l e g is l a t i v e c l a r if i c a t i o n w ould r e s o lv e t h is p ro b lem .
222

NpR

National Food Processors Association

1133 Twentieth Street N.W., Washington, D C. 20036

Telephone 202/331-5900

LEGISLATIVE AFFAIRS

24 J a n u a ry 1980

■M* 2g igfThe H onorable C a rd iss C o llin s

Chairwoman

Subcom m ittee on Manpower and H ousing

Com m ittee on Governm ent O p e r a tio n s

U. S. House o f R e p r e s e n t a tiv e s

W ashington, DC 20515

D ear Congresswoman C o l l i n s :

S e v e r a l in a c c u r a t e sta te m e n ts w ere made ab o u t members o f th e

N a tio n a l Food P ro c e ss o rs A ss o c ia tio n (NFPA) a t th e h e a rin g b e fo re y o u r

su bcom m ittee on November 13, 1979. The h e a rin g co n c e rn e d th e im plem enta

tio n o f th e Farm L ab o r C o n tr a c to r R e g istr a tio n A ct (FLCRA).

F o r th e r e c o r d , we would l i k e to c o r r e c t some o f th e more

si g n if i c a n t i n c o r r e c t st a te m e n ts. We a sk e d th o s e com panies m en tio n ed ,

who a r e members o f NFPA, t o re sp o n d to th e a l l e g a t i o n s . T h e ir re s p o n s e s

a r e a tta c h e d .

The M ig ra n t L eg a l A c tio n Program (MLAP) w itn e ss s a id t h a t

c o r p o r a tio n s have shown " a g e n e r a l p a tt e r n " o f a b u sin g m ig ra n t w o rk e rs,

and r e f e rr e d to an e x h i b it a tt a c h e d to h is te stim o n y . The e x h i b it,

w h ile t a l k i n g ab o u t com panies in s e v e r a l s t a t e s in g e n e r a l term s, c it e d

o n ly two s p e c ifi c ex am ples in v o lv in g c o r p o r a tio n s. One o f th o s e , Naas

F o o d s, I n c . is a member o f NFPA. In s e p a r a te c o rre sp o n d e n c e , MLAP

m en tio n ed two com p an ie s, Owatonna Canning Company and Aunt N e l l i e 's

F o ods, w hich a r e NFPA members, and we w ould l i k e to d is c u ss th o s e c a s e s

a ls o .

The f i r s t in a c c u r a c y o f th e MLAP te stim o n y is th e sta te m e n t

t h a t many com p an ie s, in c lu d in g c an n in g com p a n ie s, abuse m ig ra n t w o rk e rs.

Speaking f o r th e c a n n in g i n d u str y , we can sa y t h a t t h a t sta te m e n t is

c o m p le te ly f a ls e . The few c a s e s m en tio n ed do n o t e s t a b l is h a p a tt e r n

o r any w id e sp re a d a b u s e . C a n n e rs who employ m ig ra n t w o rk e rs r e c o g n is e

t h a t f a i r l y tr e a t e d w o rk e rs do a b e t t e r jo b and may r e t u r n f o r employment in f u tu r e s e a s o n s.

As in d i c a t e d in th e a tt a c h e d l e t t e r s , MLAP h a s c o n sist e n tl y

st a t e d i t s a ll e g a ti o n s a s i f th e y were f a c t . In a c t u a l i t y , th e a ll e g a ­

ti o n s have been e i t h e r shown to be u n tr u e , o r w here a d is c re p a n c y h a s

been e st a b lis h e d , com p en sa tio n h a s been made.
223

■ F o r exam ple, Naas Foods, In c . made a d d itio n a l paym ents to

■ s e v e r a l m ig ra n t w orkers a f t e r a Labor D epartm ent fin d in g t h a t minimum

■ wage re q u irem e n ts were n o t m et. S u b s e q u e n tly , th e I n d ia n a L eg a l

■ S e rv ic e s O rg a n iz a tio n (LSO) l e a r n e d o f t h is when Naas Foods v o lu n -

■ t a r i l y gave LSO r e p r e s e n t a tiv e s a c c e ss to company r e c o r d s. The LSO

H th en f i l e d s u i t . S in c e th e iss u e was a lr e a d y s e t t l e d by th e D epartm ent

H o f Labor and Naas Foods, i t a p p e a rs t h a t th e LSO l i t i g a t i o n w as, as th e

H c o u n s e l f o r Naas Foods s t a t e s , "n o th in g more th a n an a tte m p t to j u s t if y

H t h e ir (LSO's) e x iste n c e and b u d g e t" .

H MLAP im p lie s t h a t p r o c e ss o rs a r e g u ilt y o f v i o l a ti o n s under

H FLORA. But in each o f th e th r e e c a s e s, a ll e g a ti o n s u n d e r FLORA were

#

e i t h e r d ism iss e d o r dropped. T h is s u b st a n ti a t e s th e i n d u str y p o sitio n ,

■ which NFPA p r e s e n te d to th e subcom m ittee in th e a tt a c h e d te stim o n y , t h a t

H c an n in g com panies sh o u ld n o t be r e q u ir e d to r e g is t e r a s farm la b o r

■ c o n tr a c to rs. As we e x p la in , p r o c e ss o rs a r e a lr e a d y r e g u l a t e d by

■ numerous laws o th e r th an FLORA, w hich govern th e employment o f a l l employ-

• e e s, in c lu d in g m ig ra n t w o rk e rs.

■ We su g g e st t h a t t h is l e t t e r and th e a tt a c h e d r e s p o n s e s sh o u ld

be made a p a r t o f th e h e a rin g r e c o rd in o r d e r to c o rr e c t th e in a c c u r a te

H sta te m e n ts made by MLAP.

H Thank you.

I c c : Congressman M. C a ldw e ll B u tl e r

■ «* Mr. P e t e r Mauger, Naas F o o d s, In c .

I Mr. R. Wayne O lm sted, Owatonna Canning Co.

I Mr. C .JB la s k a , Aunt N e l l i e 's Foods

i
224

WAYNE W. HINKLE

L. R. RACSTER

WILLIAM W. HINKLE

UAW O F F IC E S

H i n k l e & R a c s t e r

PROFESSIONAL CORPORATION

207 W. MAIN ST.

P. O. BOX 60©

P o r t l a n d , In d ia n a 4T3ti

TEL. 726-610-4

November 29, 1979

Mr. Claude D. Alexander

National Food Processors Association -

1133 Twentieth Street N.W.

Washington, D.C. 20036 i

Re: Testimony of John Ebbott

of Migrant Legal Action Program

Relevant the Farm Labor Contract

Registration Act

Dear Mr. Alexander:

As counsel for Naas Foods, Inc., Mr. Peter Mauger has requested that

we respond to you relevant the testimony of Mr. Ebbott wherein the

migrant labor case is pending against Naas Foods and denoted in

Mr. Ebbott's testimony at Page 6 of Exhibit A.

First of all, this litigation is pending upon our Motion for Summary

Judgment before the Federal District Court in Fort Wayne, Indiana,

and has so been pending since January of 1978 without any further

action by LSO on behalf of its clients other than a simple response to said motion which they filed in April of 1979.

The statement describing the case as set forth in the exhibit is

to say the least, misleading.

First of all, reference is made to a letter to Mr. Sosa requesting 165 women and 160 men to work in Portland, Indiana. There is on

file with our Motion for Summary Judgment copies of a bilingual disclosure statement setting forth the exact terms of employment.

That statement was furnished to LSO representatives prior to their

commencing litigation.

Naas Foods also welcomed an LSO case worker into our plant prior to

the filing of the litigation and furnished them copies of any and

all information requested relevant the migrant employees of Naas

Foods. It was from that information voluntarily furnished that

LSO became aware of a Department of Labor finding that certain 

minimum wage requirements were not met in payments to migrant workers.

The litigation eventually commenced by LSO is in respect to very

small amounts and I have attached for your information a summary

which is Exhibit Q to our defense to the litigation. That summary

shows the deductions allegedly made bringing the employee's wage below the minimum wage.
225

Hin k l e & Ra c s t e h

i

Mr. Claude D. Alexander -2- November 29, 1979

Contrary to the assertions of the LSO in the exhibit description, 

the advances were not for Company cafeteria credit. The advances 

were in cash to each respective employee. The advancements being

in cash were within the full control of the employee and could have 

been used to buy groceries or food atany business establishment.

Each migrant labor living facility at.Naas' labor camps are supplied

with cooking units. Naas does, however, as a convenience to its

migrant laborers provide a cafeteria which is operated by a MexicanAmerican couple who prepare foods to the taste and style the migrant

laborers are accustomed. Such cafeteria facility is also very

economical and it is for that reason that the migrant workers use

the cafeteria.

Reference is made at Paragraph 4 of LSO's explanation of the case

that workers were brought several weeks before steady work was

available to the State of Indiana. That statement of several weeks

is grossly misleading as workers were brought to the plant only

a few days before full-time work was available. Work would have

been available upon their arrival had it not been for the extremely

wet August in 1978. You might recall that August of 1978 was the

wettest August in forty years in the State of Indiana resulting in

enormous crop losses and in a large portion of the State being declared

a disaster area. Many farmers in our area were granted disaster loans

due to the extreme wet conditions. As a result, the starting of the

season was suddenly delayed because of our inability to harvest

ripened crops in muddy fields.

Paragraph 5 of LSO's explanation of the Naas case intends to imply

that LSO or some other individual notified the Department of Labor 

of violations by Naas which is not the case. The Department of

Labor made a routine examination during the first couple of weeks

of the 1978 tomato pack and discovered the alleged violations. As

soon as the extent of the violations were actually determined by

the Department of Labor, Naas made full restitution to all employees 

as indicated by the enclosed summary sheet previously referred to

and the matter resolved to the satisfaction of the Department of

Labor. It was only after that matter was resolved that LSO commenced

litigation.

As for the FLORA violations, the Department of Labor found none and

the litigation now pending before the Federal courts is based solely 

upon migrant labor testimony versus testimony of Naas employees and

personnel. The question is one of fact as to whether the disclosure

statements as furnished by Naas were distributed as required by law.

It is the position of Naas and the crew leader, Edmundo Sosa, that

they were. Until such time as the Federal Court should determine that

they were not, a request by the LSO that the Department of Labor

not renew Mr. Sosa's registration seems grossly unwarranted.
226

Hin k l e & R a c b t e r

Mr. Claude D. Alexander -3- November 29, 1979

We view the LSO position in filing this litigation relevant the

sums of money shown on alleged deductions and only after the matter

having been resolved by the Department of Labor and Naas as nothing

more than an attempt to justify their existence and budget.

As can be shown by the summary, the loans made were in even dollars

and obviously cash advancements and not for cafeteria credit.

You should also be advised that the bus fares that were deducted as

shown in the attached summary were deducted over a substantial humber *

of weeks as were the collected loans arid not in lump sums from single

paychecks.

I would not only once again like to point out that restitution for

alleged overdeductions in violation of minimum wage laws was made «

prior to the LSO litigation and by agreement with the Department

of Labor but also within sixty days after the original violation

was allegedly committed.

Apparently, LSO in Indiana has taken the attitude that they are the

enforcement division of the Federal Government for violations of

FLSA and FLCRA as a further means to justify their budget and

existence. However, it may well be that they are using the findings

of the Department of Labor as a means to create case loads for

themselves. I would suggest that none of the seventeen workers

who are plaintiffs in the Naas litigation ever first contacted LSO.

I would rather believe that they were contacted as potential clients.

If I can be of any further assistance, please advise.

Very truly yours

B:

LRR/wrm

Enclosure
> « ■*

NAAS FOODS, NI C.

SUMMARY OF ALLEGED DEDUCT OI NS and REPAYMENTS

15 M ig ra n t E m p ol yees 1978 Season

C ol c k

No. E m p ol yee Name

Loans

Made

Loans B a al n c e o f

C ol el cted Loans

S t i l l Due

Bus Fare

Deducted

Bus Fare

Repa di

D e d u c tio n S u p p ly ^ K in d o r

fo r Deduct oi n?, Suppl ei s

Suppl ei s Repa di m Deducted

' For

2162 Mar ai Torreb al nca 40.00 40.00 12.95 12.95

2240 Guil el mr o Lopez 25,00 10.00 15.00 13.66 13.66

v

io

t

A

oh< 2234 Rene Torres 25.00 35.00 49.82 49.82

Juan Manuel Sepeda * 35.00 -0 - 35.00

2160 Ernesto Lopez 45.00 30.00 15.00 -0 - -0 - 31.00 3 1 .0 0 **_ Ra ni coat '

Boots

2195 Anton oi Lopez 30.00 30.00 -0 - -0 - 2271 Raymundo Garza 15.00 15.00 54.43 54. 4- 3 '

2243 Ramon Gonza el z 30.00 30.00 65.94 65.94

2272 M gi uel Me el ndrez 15.00 15.00 72.47 72.47

227. 5

2217

Juan Chavez

Ruben A. S o lis

45.00

20.00

45.00

20.00 -0 - 60.91 -0 - 60.91 6 .CO 11.13 Roots R( epa $6. + Incen

216 Jesusa A. G ut ei rrez 50.00 35.00 15.00 5.01 5.01

2151- Ignac oi Tabares 85.00 85.00 90.00 90.00

2' 41 Peta Fonseca 20.00 20.00 67.91 67.91

233 Grac ei al De La Cruz 20.00 15.00 5.00 44.35 44.35

• Juan Manuel Sepeda came up on bus, but was only 17 y rs . o dl and

cou dl not work in NI D. He kept us ni g other peop el s' c ol ck no.

to get ol ans. Also used other peop el s check stubs to tr y &

net money repa di to h mi l h at was never deducted from h mi .

# * Ernesto Lopez - Check to

$16. as we deducted the

repay suppl ei s was fo r

$15. Loan s t i l l due.
228

i

Owatonna Canning Company

___________ P.O. BOX 447 • OWATONNA, MINNESOTA 55060 • PHONE 507/451-7670

November 19, 1979

Mr. Claude D. Alexander

Legislative Representative

National Food Processors Association

1133 20th Street N.W.

Washington, D.C. 20036

Dear Claude:

Today I received your letter with a copy of a letter from a Ilr. Mark Schacht

who apparently is a Legislative Advocate for the Migrant Legal Action Program. In his letter Mr. Schacht made several statements concerning the Owatonna

Canning Company and the information he provides contains flagrant untruths

to the point of where he may be opening himself for a liable suit.

First of all, the case of Cantu vs. Owatonna was filed over 3 years ago and has not come to court yet. Presently it looks like it might come to court 

sometime the end of next year. Since nothing has been proven, the charges

made by the legal aid attomies are merely allegations. Mr. Schacht writes

as if these allegations are a proven fact.

Mr. Schacht says the workers arrived in Minnestoa and were paid inadequate

wages. He also says that they were to expect an average of $3.00 per hour

in 1976 and actually earned less than Federal minimum wage of $2.00 per

hour. Both these statements are incorrect. They are simply not true.

Neither is it true that children under 16 worked in the fields and were

net paid. Anyone who worked in the fields was paid. It is untrue that no 

accurate records were kept for the hours worked. We have complete records

of what transpired in 1976. Tt is untrue that our personnel, manager transported workers. Indeed he was not even involved with the program.

Furthermore, at no time have vie used as a defense in the lav/ suit an attempt

to place responsibility on the lower echelon crew leaders. That is a complete lie. We have taken complete responsibility for this case from the very

beginning.

Originally the lav; suit filed by a legal aid was very broad and covered nearly

every lav/ applying to migrants. Over the past three years, as legal aid investigated the Owatonna Canning Company, they have gradually become to

understand our system and have dropped most of the charges of the original

lav/ suit. All that remains is a matter of whether records v/e kept met

Government requirements or not. The whole lav/ suit will be decided on that

matter.
229

I t should be further noted th a t we had been thoroughly inspected by several

different Federal and State Agencies each year for the la st 10 years. This

is why the lav; suit is also aimed a t such agencies as the Texas Employment

Commission, the Department of Labor, the Minnesota Employment Services and

even the Secretary of Labor in Washington, Since vze were inspected in the

years 1975-76 and the government agencies found no violations i t was necessary

for legal aid to file a lav; su it against the governmental agencies too.

Originally they were suggesting that we might have bribed the government

agencies but there was no truth to that idea and they have not pursued i t .

One fin a l point is important. The matters with which the law su it is con- •'

cemed actually do not rela te to FLORA sections that are under question for

amendment. I believe Mr. Rosenthal talked to our attorney, Mr. Jim Strother,

and has further information on that particular phase of the law suit.

I did want to get th is off to you immediately so I am sending i t without

comment on any problems we have had with FLORA and the way i t is being

interpreted. I need a l i t t l e time to think of some incidents and will

try to get seme more information, to you in the near fu tu re.

If you have any further questions or I can be of any further help on th is

matter, please le t me hear.

Sincerely Yours,

R. Wayne Olmsted

Vice President

RWO/dmm
230

THOMAS C.OSCNBENOCN

M IC H A E L , B E S T & F R IE D R IC H

2 5 0 CAST W ISCONSIN AVENUE

M ILWAUKEE, W IS C O N SIN 5 3 2 0 2

December 21, 1979 F.O. BOX IBOB

MADISON, WISCONSIN BS7OI

DEC 31 i3/5

4

Mr. Claude D. A lex an d e r

L e g isl a tiv e R e p re s e n ta tiv e

N a tio n a l Food P ro c e ss o rs Assn.

113323 N orthw est

W ashington, D.C. 20036

Re: Aunt N e l l i e 's Foods

Dear Mr. A lex an d e r:

We have been a sk ed by o u r c l i e n t , Aunt N e lli e 's

Foods, to re sp o n d to your l e t t e r o f November 15, 1979

r e f e r e n c in g c e r t a i n comments in th e l e t t e r o f M ig ran t

L egal A c tio n Program , In c . c o n c e rn in g th e c a s e o f

Abraham v . B e a tric e Foods. Our firm r e p r e s e n te d b o th

Aunt N e l l i e 's and B e a tric e Foods w ith r e g a rd to t h a t

m a tt e r.

U n fo rtu n a te ly , th e MLAP l e t t e r is a p p a r e n tly

b a sed s o l e ly on th e a ll e g a tio n s in th e c a s e and c o n ta in s

numerous in a c c u r a c i e s. Although Aunt N e l l i e 's had f i l e d

a r e q u e st f o r s e a s o n a l employees w ith th e W isconsin S ta te

Employment Agency, i t made no o r a l o r w ritt e n r e p r e s e n ­

t a tio n s t h a t em ployees would work 12 h o u rs p e r day, 7

days p e r week d u rin g th e h a r v e st s e a so n . In f a c t, n e ith e r

Aunt N e lli e 's n o r, to o u r know ledge, th e W isconsin S ta te

Employment S e rv ic e , had any d ir e c t c o n t a c t w ith th e

in d iv id u a ls r e c r u it e d p ri o r to t h e ir a r r i v a l in W isco n sin .

A ll such c o n ta c ts w ere made by th e L o u isia n a S ta te

Employment S e rv ic e .

The l e t t e r a ls o im p lie s t h a t th e in d iv id u a ls

rem ained in t h e ir h o u sin g f o r a s u b st a n ti a l p e rio d w a itin g

4
231

M IC H A E L , B E S T & F R IE D R I C H

Mr. Claude D. A lexander j - 2 - December 21, 1979

f o r w ork, and had money d ed u c ted from t h e ir checks

f o r fo o d . In r e a l i t y , th e in d iv id u a ls in q u e stio n

a rriv e d one even in g and c r e a t e d a s u b st a n ti a l d istu rb a n c e th e fo llo w in g m orning. A fte r t h is d istu rb a n c e ,

th ey w ere o ff e r e d and a c c e p te d tr a n s p o rt a tio n back to

L o u isia n a w ith s u f f i c i e n t funds to p u rc h a se food en

r o u t e , even though th ey had p e rfo rm ed no work. S in c e

th e y w ere o n ly in W isconsin f o r a v e ry b r i e f p e rio d

o f tim e and perform ed no work, .they r e c e iv e d no paychecks and hence th e r e were no d e d u c tio n s, l e t a lo n e

e x c e ssiv e o n e s. A lthough m eals w ere made a v a ila b le

to them, th e p ric e s were c o n sid e 'ra b ly low er th a n th o s e

in l o c a l r e st a u r a n ts. S im ila rly , th e h o u sin g , which

th e y u t i l i z e d o n ly one n ig h t, h ad b e en approved by th e

a p p r o p ria te a u t h o r iti e s.

We a r e r a th e r s u r p ris e d t h a t MLAP would p r e s e n t

as f a c t th e a ll e g a tio n s in q u e stio n . C e rta in ly , MLAP

sh o u ld have re c o g n iz e d t h a t th e r e is a v a st d iff e r e n c e

betw een a ll e g a tio n s in a c om p la in t and w hat a c tu a lly

to o k p la c e . I ts w illin g n e ss to ad o p t th e s e a ll e g a ­

tio n s as f a c ts and p r e s e n t them as such to S e n a to r

N e ls o n 's s t a f f would seem to i n v it e c h a lle n g e .

m a tio n ,

I f we may p ro v id e you w ith any f u rth e r in f o rp le a s e c o n ta c t me.
4

APPENDIX 2.—STATEMENT OF THE SOCIETY OF AMERICAN FLORISTS AND ORNAMENTAL HORTICULTURISTS

society of american florists and ornamental horticulturists

901 NORTH WASHINGTON STREET, ALEXANDRIA, Vl RG INIA 2 2 3 1 4 , TELEPHONE (7 0 3 ) 8 3 6 -8 7 0 0

November 13, 1979

RECEIVED '

N0V27W9

wholesalers, and retailers

The Honorable Cardiss R. Collins

Chairwoman

Subcommittee on Manpower & Housing

House Committee on Government

Operations

U.S. House of Representatives

B-349-A Rayburn House Office Bldg.

Washington, D.C. 20515

Dear Chairwoman Collins:

On behalf of the nearly 8,000 grow«

of floral products who comprise the membership of the Society of

American Florists and Ornamental Horticulturalists, I am writing

to draw your attention to some serious problems associated with the

Farm Labor Contractors Registration Act (FLCRA) of 1963.

On November 13, 1979, your subcommittee held hearings on the U.S.

Department of Labor's enforcement of FLCRA, and I respectfully

request that this letter be made part of the hearing record.

As you know, Congress passed the Farm Labor Contractor Registration

Act to stop abuses of migrant workers by so-called "crew leaders".

Crew leaders were often transient and could not be located after 

abuses of migrant workers were discovered. Even if they could be

located, they often had no insurance or other assets to pay for

injuries or wrongs done to migrant workers they had recruited. In

passing FLCRA, Congress intended to cover "farm labor contractors", i.e.

any person who for a fee recruits, hires, or transports migrant workers

for agricultural employment. Congress specifically excluded "any farmer,

processor, canner, ginner, packing shed operator or nurseryman" and his

"full-time or regular employee" from the definition of "farm labor 

contractor", if that individual "personally" hires or deals with agricultural workers solely for his own operation. The law also excludes

the employees of such individuals who are involved with migrant workers

"on no more than an incidental basis".

Congress exempted these farmers, nurserymen, and others who might employ 

migrant or seasonal workers because they are easily located, and,

typically, financially sound enough to reimburse workers for legitimate 

injury or damage.

4

t

(232)
233

The Department of Labor, however, through its interpretation and

implementation of FLCRA, has reversed the congressional intent of

the legislation. DOL now contends that no corporation can act 

"personally". Since nearly every farmer and grower of floral products

does business as a corporation, the Labor Department has taken the

position that anyone within that "corporation" who deals with agricultural workers must comply with FLCRA registration regulations. The 

result is another source of "red tape" and needless expenditure of

manhours and resources which are a burden to growers of floral products

and others.

SAF strongly believes that migrant or seasonal workers, and all other

employees, should be treated fairly, and we believe that the changes

needed in FLCRA to remedy the unnecessary and costly regulations now

being enforced would not subject those workers to the risk of abuse.

We urge you, as Chairwoman of the Subcommittee on Manpower and Housing,

to take the legislative steps necessary to correct the ill-advised

interpretations of FLCRA by the Department of Labor.

Very truly yours

Dougl^j/ K. Dillon

President.

68-643 0 - 8 0 - 1 6
APPENDIX 3.—U.S. DEPARTMENT OF LABOR LETTERS

TO MANPOWER AND HOUSING SUBCOMMITTEE RELATING TO ENFORCEMENT OF THE FARM LABOR CONTRACTOR REGISTRATION ACT

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION

Wage and Hour Division

WASHINGTON, D.C. 20210

SEP 1 o 1979

Richard E. Grawey, Esq.

Subcommittee on Manpower and Housing

Committee on Government Operations

Rayburn House Office Building, Rm. B-349-A

Washington, D. C. 20515

Dear Mr. Grawey:

In response to your inquiry of August 9, 1979, the following

information is provided on the Farm Labor Contractor

Registration Act, as amended. The information is set forth

in the same order as presented in your letter.

A) Certificates of Registration

1. Number issued, 1965 to present

Information available from 1972 (when the Wage and Hour

Division assumed responsibility for the program) to the

present. (Presented by calendar year).

1/ 2/

1972 1973 1974 1975 1976 1977 1978 1979

FLC 1,211 1,572 1,435 4,014 6,887 7,615 8,040 8,236

FLCE 161 359 357 1,449 2,852 3,995 8,118 5,159

Total 1,372 1,931 1,792 5,463 9,739 11,610 16,158 13,395

1/ The increase in registration during 1978 resulted from

initial enforcement drives into the farm labor contracting

activities in the seed corn industry.

2/ The 1979 statistics represent registration from January 1,

— 1979 through July 20, 1979. Note: Registration under FLCRA

is on a calendar year basis, as set forth in the statute.

(234)
235

2. Denials, reasons for, 1965 to present

Information available from 1975 to present. The information

is not compiled, however, by 1'reason". Each action is

handled separately and may be based on numerous violative

areas.

3/

1975 1976 1977 1978 1979 (through August 20th)

26 46 90 72 84

3. Revocations, reasons for, 1965 to present

j

See No. 2 above. The numbers presented under No. 2 represent

final orders obtained pursuant to Section 5(b) of the Act

which provides for suspension, revocation, refusal to renew,

* or refusal to issue a certificate of registration or employee

identification card.

4. Estimate of those covered by the Act who fail to register.

The universe of farm labor contractors has never been

established. It is clear that since the 1974 Amendments

to the Act, significantly larger numbers of farm labor

contractors are now covered. Program plans for the next

two years show an estimated 20,000+ registration level.

B) Investigations for FLORA violations

1. Number, by region, 1965 to present

Investigation statistics are available from 1974 to present.

For years prior to 1978, the information was compiled

nationally. A new computerized system was initiated in

January 1978 which provides detailed investigation

statistical data by area office, region and nationally.

(Information is for fiscal years).

3/ Does not include suspension of transportation authorization.
236

FY 1974 1975 1976 1977 1978

4/

1979

National: 1024 910 2398 2327 3823 3773

Regions:

I-Boston 48

Il-New York 214

III-Philadelphia 305

IV-Atlanta 858

V-Chicago 679

VI-Dallas 788

VII-Kansas City 208

VIII-Denver 82

IX-San Francisco 482

X-Seattle 109

2. Number of subpoenas issued by DOL.

Information not available.

3. Percentage of investigations which result in a finding that

FLCRA has been violated.

Information available from 1975 forward (by fiscal year).

5/

1975 1976 1977 1978 1979

86% 67.5% 67% 70% 52%

The enforcement resource levels was doubled in FY-79. We

were able to examine more agricultural areas some of which

were found, at the conclusion of the investigation not covered

by FLCRA. We have been working closely with local migrant

legal action programs and other agencies to improve targeting

of covered FLCRA activities. A more realistic violation rate

may be obtained by removing the non-covered investigations.

This rate would average 64.5% for FY-79.

4/ Represents investigation statistics for FY-79 from September 20,

1978 through August 20, 1979

5/ Violation rate for period from September 20, 1978 through

August 20, 1979.
237

4. What percent of new violations are due to the actions of

persons or organizations that had previously violated the

Act?

a) of repeat violators what number or percentage have

requested an appeal of the previous violation which

appeal has not yet been heard?

b) of repeat violators what number or percentage have

outstanding civil money penalties?

While our statistical system is not set up to collect data by

) "repeat violators", we are very much aware of the recidivism

problem with farm labor contractors, farm labor contractor

employees and users of farm labor contractors. The estimates

of percentage of repeat violators vary, but may be as high as

9 75%.

Currently each case is handled on a separate basis. However,

in the event a subsequent case arises on the same violator, the

matter would be combined for appropriate action if feasible.

C) Work years budgeted for administration of FLCRA, 1965 to

present, by region.

See enclosure.

1. In which regions were these allocations sufficient to visit

every labor camp in the region? In what regions were these

allocations not sufficient to visit every labor camp?

Inspection under housing safety and health standards for farm

labor camps comes under the jurisdiction of three agencies within

the Department of Labor: the Occupational Safety and Health

Administration; the Employment and Training Administration; and

the Employment Standards Administration. Under the Farm Labor

Contractor Registration Act, the Wage and Hour Division would

inspect labor camps owned or controlled by farm labor contractors

Where we have coverage and housing safety and health violations

are present, the Wage and Hour Division will proceed to take 

steps to correct the situations.
238

Estimates on the number of farm labor camps range as high as

20,000. In FY-79 we will complete approximately 5,000 FLCRA

investigations. We are presently working with OSHA and ETA

to develop a universal listing of farm labor camps which will

be available for investigation scheduling in 1980. The

recently signed tri-agency agreement (copy enclosed) will

allow for the broadest investigation coverage of camps by the

three agencies with a minimum of duplication.

2. Does the Department of Labor have a list of all farm labor

camps and farms which employ agricultural workers covered

by the Act?

(

See C) 1.

D) List the POL schedule of suggested fines for violations

of FLCRA *

1. List the 29 possible violations of FLCRA.

Enclosed is a Farm Labor Civil Money Penalty Report, WH-418,

which lists the 29 violations for FLCs/FLCEs, and the 6

violations for which a grower, processor or other user may

be liable and the suggested fines for each of the

violations. Also see opinion letter WH-440.

2. Data on civil money penalties which became final because

no appeal was requested.

a) Number and amount, by type of violation, for each year

b) Civil money penalties collected, by type of violation,

each year

c) Disposition of final civil money penalties not

collected

Assessments under the civil money penalty provisions of the 

law since January 1977, when the first penalties were levied,

now total more than $2,616,375. Enclosed are copies of

statistical charts showing the amount of civil money penalties

assessed and the number of fines levied in each of the

thirty-five (35) categories of violations of the Act, broken

down by region.
Civil money penalty payments in the amount of $37,675 were

received in 1977; payments totalled $131,457 in 1978; and 

$85,844 during the first half of 1979. Pursuant to

Regulation 29 CFR 40.121, the person assessed is apprised of 

the right to request a hearing on the assessment determination

within a specified time, and that in the absence of a request

for a hearing the determination to assess shall become the

final and unappealable Order of the Secretary. During 1977,

a total of $79,625 in unpaid civil money penalties, representing

final orders, was referred to our Regional Solicitors for

collection, pursuant to 29 CFR 40.124. In 1978, the total

amount collectible was $192,075 and during the first half of 1979 

the collectible total was. $193,025. In summary, civil money

penalties collected through the first half of 1979 total $254,976

with a total of $464,725 unpaid and referred for collection.

The difference between the total assessed and the amount already

paid or to be collected is attributable to arrangements made

with the assessees for settlement of their accounts and the cases 

awaiting hearings.

3. Data on civil money penalties for which an appeal was

requested.

a) Number and amount, by type of violation, for each

year

b) How many cases have been heard by administrative law

judges?

i) Disposition of these cases

ii) Appeals to Court of Appeals

c) How many cases have not yet been heard by an ALJ?

F) Injunctions, Damages, other court-ordered relief

Questions E) 3, F, G, and H have been referred to the General

Legal Services Division, Office of the Solicitor for response

under separate cover. The Wage and Hour Division does not

maintain data on the information requested.
I hope this information is useful. Please let

you need any further information.

Sincerely,

a.

C. Lamar Johnson(

Deputy Administrator

Enclosures
FLCRA Enforcement

Compliance Officers

1/

FY 1975

2/

FY 1976 FY

3/

1977

1/

FY 1978

5/

FY 1979 FY 1980

udget positions 16 28 28 28 58 58

Planned enforcement staff yr. 8.4 19.4 20 30 46.2 46.2

Actual enforcement staff yr. 6.4 12.7 29 30 4l.l

1/ Continuing resolution level until the appropriation was passed on Dec. 7, 1974. The 10 compliance officers

positions received as a supplemental in FY 1974 were not fully effective until the latter half of FY 1975

because the continuing resolution level was approved at the FY 1974 level.

2/ Continuing resolution level until the appropriation was passed on January 28, 1976. The 12 compliance officer

'positions received as a program increase were not fully effective until the latter part of FY 1976 because

individuals could not be hired and trained until the appropriation was passed.

3/ The appropriation was passed on Sept. 30, 1976. Actual staff-years of enforcement exceeded plan due to increased

emphasis on FLCRA enforcement.

£/ Does not included 30 compliance officer positions received in a 1978 supplement passed on March 7, 1978. The

compliance officers could not be hired and trained to become fully effective before the end of the fiscal year.

5/ Actual from September 20, 1978 through August 20, 1979.
U.S. DEPARTMENT OF LABOR

Officb of ib b Solicitor

WASHINGTON, D.C. 20210

XT 2 4 1979

Receive:

0BT25197P

Richard E. Grawey, Esquire 

Subcommittee on Manpower and Housing

Committee on Government Operations 

Rayburn House Office Building, Rm. B-349-A 

Washington, D.C. 20515

Dear Mr. Grawey:

The Wage and Hour Division has referred to our office certain 

questions regarding litigation under the Farm Labor Contractor 

Registration Act, as amended, from your letter of August 9, 1979.

In response to your inquiry, the following information is

provided:

E. 3). Data on civil money penalties for which an appeal

was requested.

a) Number and amount, by type of violation, for

each year.

The Solicitor's office does not maintain detailed data

on the information requested; however, we are in the process

of establishing a new computer tracking system which will enable

us to keep more accurate statistics on litigation activity.

Information on contested cases referred to our

office is provided below. It should be noted that the

increase in caseload from 1976 to 1977 is due to the fact

that civil money penalty assessments were implemented

in 1977. Prior to 1977, the only contested cases involved

licensing matters.

Contested Cases Referred

Calender Year Licensing CMP Total

1976-i/ 12 _ 12

1977 19 80 99

1978 28 615 643

1979 (as of 9/79) 62 520 582

1/ We estimate that 11 contested licensing cases were

referred to our office prior to calender year 1976 although

statistics for this period are incomplete.
243

b) How many cases have been heard by Administrative

Law Judges?

Once an individual requests a hearing on actions taken by

the Wage and Hour Division to enforce the Act (civil money

penalty assessments or licensing determinations), the case

files are forwarded to the National Solicitor's Office

for review and analysis. An attempt is made by the

National Office to settle some cases prior to referral to

the Office of Administrative Law Judges. (For example, cases

involving a first investigation, minor violations and/or

penalties, or where corrective steps were taken to insure

future compliance.) If settlement is not appropriate and

a decision is made to proceed with litigation, the cases

are referred to the Office of Administrative Law Judges for

purposes of scheduling a hearing. Often after a hearing is

scheduled, the parties may agree to settlement of the

matter prior to the hearing. We have provided below as detailed 

information as we maintain at this time.

Cases settled prior to referral

CY 76 - 1

CY 77 - 7

Total: 83

CY 78 -

CY 79 -

10

65 (as of 9/79)

Cases referred to the Administrative Law Judge for hearing

CY 73 - 2 CY 77 - 11

CY 75 - 1 CY 78 - 16

CY 76 - 6 CY 79 - 73 (as of 9/79)

Total: 109

i) Disposition of these cases

ii) Appeals 

Hearings held - 22

Cases settled prior to hearing after referral - 50

Cases referred but not yet heard - 37

In all cases which have been heard by an Administrative

Law Judge, the Department's determinations have been upheld

in whole or in part. Only two Administrative Law Judge

decisions have been appealed by the Respondents to the
244

U. S. District Courts pursuant to §§9(b)(3) and 11 of

the Act. No decisions on those appeals have been issued

to date.

c) How many cases have not yet been heard by the

Administrative Law Judges?

As the figures demonstrate (see 3(a) above), the number

of cases being forwarded to the Solicitor's Office has increased

dramatically. In 1977 we received 99 cases for analysis

and possible referral, in 1978, we received 643 cases and in

the first nine months of 1979, we have received 582 cases.

Our office is on the average receiving 60 cases per month

maj

at the present time. As a result of this relatively recent <

or increase in our caseload, 923 cases have not yet

been analyzed or referred to the Office of Administrative

Law Judges.

F. Injunctions, Damages, Other Court-Ordered Relief

1. Suits brought in U.S. District Courts

by Department of Labor to enforce FLCRA, by type

of violation, each year.

We have provided below as detailed information as available

on the suits brought where injunctions were obtained.

1976 - 123

1977 - 64

1978 - 56

1979 - 49 (as of 9/79)

2. Disposition of suits brought by POL, by type

of violation, each year.

In the vast majority of cases filed in U.S. District Courts,

injunctions have been obtained by our Regional Solicitor's v

Offices. Eight appeals have been filed to the Courts of

Appeals to date. We have received within the past year

the first two decisions since the Act was substantially

amended in 1974, both of which were favorable. The

remainder are pending. We are also providing in Attachment 

A, a list of injunctions obtained which specify the name

of the individual and issues involved. This listing does not

completely reflect our 1978 and 1979 injunctive activity,

on which we are still compiling statistics.
245

G. Suits brought by farmworkers

Our office does not maintain data on the information

requested. We have no way of knowing the exact number of 

suits brought by farmworkers since the Department of Labor is

not a party to the action. In coordination efforts with

Migrant Legal Services Groups, we become aware and occasionally, provide assistance in suits brought throughout the

country.

H. Indicate, by type of violation, the referrals made to

the Department of Justice for criminal prosecution

Referrals for criminal prosecution are presently made by our

Regional Solicitor's Office to the local U.S. Attorney. Our

data on these referrals is incomplete but provided below are

figures on cases in which we are aware of and have monitored

the criminal prosecution.

Prior to FY 79

18 cases closed - See Attachment B for disposition

Criminal Litigation - FY 79

10 cases received

7 cases analyzed

1 filed

2 referred

5 closed

We are unable at this time to provide any detailed information

on the disposition of these cases since in some instances

the criminal litigation process is ongoing. We would be

agreeable to discuss these cases on an informal basis if

necessary.

During a telephone conversation between yourself and staff 

attorney Ms. Laurie Rucoba of this office, you also requested

information on suits brought against the Department of Labor 

in regard to the Farm Labor Contractor Registration Act, as

amended. Our office would be happy to discuss that type of

case with you so that you are aware of the problems

encountered in this area. Please feel free to contact Paul E.

Myerson, Counsel for Employment Standards, at (202) (523-8244).
246

The number o f a tto r n e y s engaged in p ro c e s s in g th e case f i l e s

in th e N a tio n a l O f f i c e , in c lu d in g h a n d lin g o f a p p e l la te ca se s

and d e fe n s iv e s u i t s , has a lw a y s been s m a l l. Because o f th e

s u b s t a n t ia l in c re a s e in th e number o f c o n te s te d ca se s due

t o in c re a s e d in v e s t ig a t io n and e n fo rc e m e n t a c t i v i t y , we

have re c o g n iz e d t h a t a new system o f p ro c e s s in g l i t i g a t i o n

f i l e s w i l l have t o be i n s t i t u t e d . We a re p r e s e n t ly in th e

p ro c e s s o f w o rk in g o u t th e d e t a i l s o f a d e c e n tr a l iz a t io n

w he re b y th e c i v i l money p e n a lty case f i l e s w o u ld go d ir e c t l y

t o one o f o u r te n R e g io n a l o f f i c e s .

I hope t h i s in fo r m a tio n i s h e lp f u l . P le a s e l e t me know

i f o u r o f f i c e can be o f f u r t h e r a s s is ta n c e .

C a rin Ann C la u s s

S o l i c i t o r o f L a b o r

Attachments
>

V

247

ATTACHMENT B

CRIMINAL ACTIONS

NAME, COURT AND CASE

NUMBER; DATE FILED

v . H o ra c e D ixon

USDC NJ

Crim .. No. 74-188-M G3

D/F 1 0 -8 - 7 4

U .S . v . Sam uel D a n ie ls

USDC NJ

Crim ,. No. 7 4 -5 3 7

D/F 1 0 -9 - 7 4

U .S . V. Thomas Cheatham

USDC NJ

Crim .. No. 74-184-MG3

D/F 1 0 -9 - 7 4

U .S . v . M anuel Caez

USDC NJ

Crim .. No. 74-192-MG3

D/F 1 1 -6 - 7 4

U .S . v . Edw ard M cElveen

USDC NJ

C rim . No. 74-190-MG3

U .S . v . Jo h n J o rd a n

USDC NJ

C rim . No. 74-189-MG3

U .S . v . G eo rg e N ic h o ls o n

a k a P e rr y Cook

USDC NJ

C rim . No. 74-187-MG3

U .S . v . F r e d d i e S y k e s

USDC NJ

C rim . No. 7 4 -5 3 8 MG3

D /F 1 0 -9 -7 4

U .S . v . Eugene W illia m s

USDC NJ

C rim . No. 7 4 -5 3 8 MG3

D /F 1 0 -9 -7 4

U .S . v . S a r a h Brown

USDC NJ

C rim . No. 74-182-MG3 C o n tr a c t o r

ACTIVITY

C o n tr a c t o r

C o n tr a c t o r

ISSUES FINAL ORDER Af

covered "Bate thereof

4 ( a ) , 6 ( c ) , $250 F in e

6 ( e ) ,, 9 S u sp e n d ed

4 ( a ) ,, 9 $250 F in e

S u sp e n d ed

4 ( a ) ,- 6 ( a ) , $250 F in e

6 ( c ) ,- 6 ( e ) Suspended.

4 ( a ) ,. 9 $250 F in e

S u sp e n d ed

4 ( a ) , 6 ( a ) , $250 F in e

9 S u sp en d ed

4 ( a ) , 6 ( c ) , $250 F in e

6 ( e ) S u sp en d ed

4 ( a ) , 6 ( a ) ,

6 (b ) , 6 ( c ) , $250 F in e

6 ( e ) S u sp en d ed

4 ( a ) , 6 ( a ) , $250 F in e

6 ( c ) , 6 ( e ) S u sp en d ed

4 ( a ) , 6 ( a ) , $250 F in e

6 ( c ) , 6 ( e ) S u sp e n d ed

$250 F in e

4 ( a ) , 9 S u sp e n d e d

r
248

CRIMINAL ACTIONS

NAME, COURT AND CASE

ACTIVITY

IS SUES

COVERED

FINAL ORDER ANL

NUMBER; DATE F IL ED ' DATE THEREOF

U .S . v . M onroe (Roe) B e a sle y

••and R o b e rt B e a sle y T i t l e 8 § 1 3 2 4 ( a ) ,

USDC MD F l a . - Tampa D iv .

C rim . A c tio n No. 7 6 -2 5 -C R -T -H

D/F 2 /2 5 /7 6

C o n tr a c t o rs T i t l e 18 §

T i t l e 7 §§

2 0 4 8 ( c )

2

2 0 4 5 (f)

P r o b a ti<

, 3 y e a i

U .S . v . Herman B e d s o le

USDC MD F l a . - O c a la D iv .

C rim . A c tio n Mo. 7 7 -4 -C r-O C

D /F 2 -9 - 7 7

C o n tr a c t o r T i t l e 18 §1001 1 Y e a r

P r o b a ti o i

U .S . v . Tomas B e l tr a n D ia z

USDC MD F l a . - O rla n d o D iv .

C.A . No. 7 7 - 1 1 -O rl-C r-R

D/F - 2 -2 - 7 7

C o n tr a c t o r T i t l e 7 § 2 0 4 5 ( f ) ,

2 0 4 8 ( c ), 2 0 4 3 (a )

2 0 4 8 (a )

3 Y e a rs

, P r o b a ti c

$ 1 ,5 0 0 I

U .S . v . V i c e n t e H in o jo s a

USDC ND O h io WD

C rim . A c tio n No. C 7 7 -1 7 6

D/F 4 -1 4 - 7 7

C o n tr a c t o r D ism iss e c

3 -9 - 7 7

U .S . v . A n n em a rie O r ti z

USDC MD F l a . - O c a la D iv .

C rim . A c tio n No. 7 7 -1 6 -C r-O c

D /F 1 1 -1 7 - 7 7

C o n tr a c t o r T i t l e 7 §§

2 0 4 8 (c )

2 0 4 5 (f) , 2 Y e ars

Probation

(

U .S .A . v . A r n u lf o M. H e rn a n d e z

USDC MD F l a . - O c a la D iv .

C rim . A c tio n No. 78-6-CR-OC C o n tr a c t o r

D/F 3 -1 3 - 7 8

U .S .A . v . J o s e G u a d a lu p e R o d riq u e z

USDC MD F l a . O rla n d o D iv . c o n tr a c t o r

C rim . No. 7 5 -1 3 5 -O rl-C r-R

D/F .1 0 - 3 1 - 7 5

T i t l e 7 §§2043 ( a ) ,

2 0 4 8 ( a ), 2 0 4 5 ( f ) ,

2 0 4 8 (c )

T i t l e 7 §§ 2 0 4 5 ( b ), 3 -1 0 -7 6

2045 ( c ) ,2 0 4 5 (a ) , C o n v ic te

2 0 4 5 ( d ), 2 0 4 5 (e ) 1 y r in

p ris o n
249

U. S. D EPA R TM EN T OF LABOR

E M P L O Y M E N T S T A N D A R D S A D M IN IS T R A T IO N

W A G E A N D H O U R D IV IS IO N

1 5 1 5 B R O A D W A Y

R E G IO N A L O F F IC E

November 8, 1979

»

N E W Y O R K . N E W Y O R K 1 0 0 3 6

(212) 944-3348

Richard E. Grawey Esq.

Subcommittee on Manpower and Housing

Committee on Government Operations

Rayburn House Office Building, Room B-349-A

Washington, DC 20515

Dear Mr. Grawey:

In response to your inquiry of September 17, 1979, the following

inform ation is provided on the Farm Labor Contractor Registration Act,

as amended, fo r the New York Region and Southern New Jersey.

A. C e rtifica te s of Registration

1. Number issued, 1977 to present

(Presented by calendar year).

FLC

1977

T27

1978

"422

1979

"125

FLCE 69 77 79

TOTAL 196 199 304

»

t

2. Denials, reasons fo r, 1977 to present

(Presented by calendar year).

1977 1978 1979

4 0 0

The four denials resulted from incomplete applications.

The applications were returned to the applicants fo r

completion but were not re-submitted.

3. Revocations, reasons fo r, 1977 to present

Not applicable at the Regional level.

4. Estimate of those covered by the Act who fa il to re g is te r

The universe of farm labor contractors and employees is

undetermined, but based on the s ta tis tic s available, the

re g is tra tio n level has shown a dramatic increase.

B. Investigations fo r FLCRA violations

1. Number, 1977 to present

(Presented by fis c a l ye a r).

6 8 - 6 4 3 0 - 8 0 - 1 7
250

Richard E. Grawey, Esq.

Subcommittee on Manpower and Housing

Committee on Government Operations -2-

1977 1978 1979

Region 150 273 450

Trenton Area

O ffice 72 107 126

November 8, 1979

2. Number o f subpoenas issued by POL

Inform ation not available

4

3. Percentage o f investigations which re s u lt in a fin d in g

th a t FLCRA has been v io late d.

1978 1979

Region 33% 39*

Trenton Area O ffice 19% 56

4. What percent o f new v io la tio n s are due to the actions of

persons or organizations tha t had previously violated the Act?

a. Of repeat v io la to rs , what number or percentage have requested

an appeal o f the previous v io la tio n which appeal has not yet

been heard?

b. Of repeat v io la to rs , what number or percentage have outstanding

c iv i l money penalties?

This inform ation is not available in the Region.

C. Work years budgeted fo r Adm inistration o f FLCRA

1977 1978 1979

Region 1.6 1.9 ■XO

Trenton Area

O ffice .4 .4 .4

1. Were these a lloca tion s s u ffic ie n t to v is it every labor camp

in the Southern New Jersey area?

The Wage and Hour D ivision o f the Employment Standards Adminstration

does not have ju ris d ic tio n over a ll labor camps. Under the Farm Labor

Contractor R egistration Act, labor camps come under the purview of

Wage and Hour only where the farm labor contractor owns or controls

the camps. Where th is s itu a tio n occurs, a housing safety and health

inspection would be made. I f v io la tio n s were disclosed, the New York

Region would take the appropriate steps to correct the s itu a tio n s .

2. Does the Department o f Labor have a l i s t o f a ll farm labor camps

and farms which employ a g ric u ltu ra l workers covered by the Act?
251

Richard E. Grawey, Esq.

Subcommittee on Manpower and Housing

Committee on Government Operations -3- November 8, 1979

The New York Region does not maintain a l i s t o f a ll farm labor camps

and farms which employ a g ric u ltu ra l workers covered by the Act fo r the

reasons stated in (C )l.

D. Data on c iv i l money penalties which became fin a l because no appeal

was requested.

1. See attachment

2. See attachment

3. These s ta tis tic s are not maintained by the Region.

* For period 9/21/78 thru 8/20/79

Raymond G. C ordelli

Assistant Regional Adminstator

Wage and Hour D ivision

Employment Standards Adminstration

cc: A/S Donald Elisburg

D/A Lamar Johnson

R/A Frank Mercurio
252

WH-417

FY77

Assessments

FY78

C o lle c tio n s Assessments C o lle c ts

Item No. No. Amount Amount No. Amount Amount

-----1-------- 8 $5,250 $1,000 y $3,500

2 - - 3 100

3 7 550 300 16 1,000 $125

4 2 100 10 325 50

5 2 800 1 400

6 - - - -

7 1 100 100 3 500

8 - - 2 100

9 - - 10 500 100

10 1 400 400 - -

11 - - 1 200

12 - - - -

13 5 1,600 200 10 4,000 400

14 4 700 9 1,400 200

15 3 1,200 3 600 200

16 8 6,500 8 7,000 500

17 - - - -

18 2 600 200 9 3,600

19 - - - -

20 - - 4 100

21 - - -

22 - - - -

23 - - -

24 2 800 - -

25 1 400 400 - -

26 - - - -

27 - - -

28 1 150 11 3,300 150

29 - - 1 1,000

30 7 5,000 2 1,500 1,500

31 - -

32 - -

33 - -

34 - - - -

35 - - - -

TOTALS 54 $24,150 $2,600 108 $29,125 $3,225
253

FY79

WH-417

ITEM No.

Assessments C o lle ction s

No. Amount Amount

1. 17 $5,750 $750

2 4 200 25

3 22 1,600 350

4 13 475 25

5 1 400

6 - -

7 5 800 200

8 7 550 50

9 25 2,000 150

10 3 4,400

11 2 600

12 - -

13 21 7,600 1 ,000

14 29 4,300 400

15 1 400

16 16 12,500 1,000

17 - -

18 14 5,000 800

19 1 500

20 5 200

21 1 50

22 - -

23 - -

24 - -

25 1 400

26 - -

27 1 500

28 14 4,500 600

29 - -

30 9 5,500 600

31 - -

32 - -

33 1 400

34 1 300

35 •

TOTALS 214 $58,925 $5,950
APPENDIX 4.—THE FARM LABOR CONTRACTOR REGISTRATION ACT OF 1963 AS AMENDED

Farm Labor Contractor

Registration Act of 1963

As Amended

U.S. Department of Labor

Employment Standards Administration

Wage and Hour Division

WH Publication 1389

Revised May 1979

(254)

i
255

FARM LABOR CONTRACTOR REGISTRATION ACT OF 1963

AS AMENDED*

(7 U.S.C. 2041 et seq.)

AN ACT - To provide for the registration o f contractors o f migrant agricultural workers,

and for other purposes.

Be it enacted by the Senate and House of Representatives o f the United States of

America in Congress assembled, That this Act may be cited as the “Farm Labor Contractor

Registration Act of 1963 as amended”.

CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY

SEC. 2. (a) The Congress hereby finds that the channels and instrumentalities of

interstate commerce are being used by certain irresponsible contractors for the services of

the migrant agricultural laborers who exploit producers of agricultural products, migrant

agricultural laborers, and the public generally, and that, as a result of the use of the channels

and instrumentalities of interstate commerce by such irresponsible contractors, the flow of

interstate commerce has been impeded, obstructed, and restrained.

(b) It is therefore the policy of this Act to remove the impediments, obstructions, and

restraints occasioned to the flow of interstate commerce by the activities of such

irresponsible contractors by requiring that all persons engaged in the activity of contracting

for the services of workers for agricultural employment comply with the provisions of this

Act and all regulations prescribed hereunder by the Secretary of Labor.

DEFINITIONS

SEC. 3. As used in this A c tla) The term “person” includes any individual, partnership, association, joint stock

company, trust, or corporation.

(b) The term “farm labor contractor” means any person, who, for a fee, either for

himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports

migrant workers (excluding members of his immediate family) for agricultural employment.

Such term shall not include—

(1) any nonprofit charitable organization, public or nonprofit private educational

institution, or similar organization;

(2) any farmer, processor, canner, ginner, packing shed operator, or nurseryman

who personally engages in any such activity for the purpose of supplying migrant

workers solely for his own operation;

(3) any full-time or regular employee of any entity referred to in (1) or (2) above

who engages in such activity solely for his employer on no more than an incidental basis;

(4) any person who engages in any such activity (A) solely within a twenty-five

mile intrastate radius o f his permanent place o f residence and (B) for not more than

thirteen weeks per year;

(5) any person who engages in any such activity for the purpose of obtaining

j migrant workers of any foreign nation for employment in the United States if the

employment is subject to—

(A) an agreement between the United States and such foreign nation; or

’The original text of the Farm Labor Contractor Registration Act of 1963 is set in the “Century” typeface. Added or

amended language as enacted by subsequent amendments is represented by other typefaces as indicated below:

Amendments Typeface Used Public Law Date Enacted Statute Citation

Original Century 88-582 9/7/64 78 Stat. 920

1974 Century Italics 93-518 12/7/74 88 Stat. 1652

1976 Century Boldface 94-259 4/5/76 90 Stat. 314

1976 •• » 94-561 10/19/76 90 Stat. 2643

1978 Century Boldface 95-562 11/1/78 92 Stat. 2381

Italics
256

Sec. 3(b)(5)(B) 2

(B) an arrangement with the government of any foreign nation under which 

written contracts for the employment of such workers are provided for and the

enforcement thereof is provided for through the United States by an instrumentality of such foreign nation;

(6) any full-time or regular employee o f any person holding a certificate of

registration under this Act;

(7) any common carrier or any full-time regular employee thereof engaged solely

in the transportation o f migrant workers;

(8) any custom combine, hay harvesting, or sheep shearing operation;

(9) any custom poultry harvesting, breeding, debeaking, sexing, or health service

operation, provided the employees of the operation are not regularly required to be

away from their domicile other than during their normal working hours; or

(10) any person who would be required to register solely because tne person is

engaged in any such activity solely for the purpose of supplying full-time students or

other persons whose principal occupation is not farm work to detassel and rogue hybrid

seed corn or sorghum for seed and to engage in other incidental farmwork for a period

not to exceed four weeks in any calendar year: Provided, That such students or other

persons are not required by the circumstances o f such activity to be away from their

permanent place o f residence overnight: Provided further, That such students or other

persons, if under 18 years of age, are not engaged in pre aiding transportation in

vehicles caused to be operated by the contractor.

(c) The term “ fee” includes any money or other valuable consideration paid or

promised to be paid to a person for services as a farm labor contractor.

(d) The term “agricultural employment” means employment in any service or activity

included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938 (29

U.S.C. 203(f)), or section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C.

3121(g)) and the handling, planting, drying, packing, packaging, processing, freezing, or

grading prior to delivery for storage o f any agricultural or horticultural commodity in its

unmanufactured state.

(e) The term “Secretary” means the Secretary of the United States Department of

Labor or his duly authorized representative.

(f) The term “State” means any of the States of the United States, the District of

Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and Guam.

(g) The term “migrant worker” means an individual whose primary employment is in

agriculture, as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C.

203(f)), or who performs agricultural labor, as defined in section 3121(g) of the Internal

Revenue Code of 1954 (26 U.S.C. 3121(g)), on a seasonal or other temporary basis.

CERTIFICATE OF REGISTRATION REQUIRED

SEC. 4. (a) No person shall engage in activities as a farm labor contractor unless he first

obtains a certificate of registration from the Secretary, and unless such certificate is in full

force and effect and is in such person’s immediate possession.

(b) A full-time or regular employee of any person holding a valid certificate of

registration under the provisions of this Act shall not, for the purpose of engaging in

activities as a farm labor contractor solely on behalf of such person, be required to obtain a

certificate of registration hereunder in his own name. Any such employee shall be required

to have in his immediate personal possession when engaging in such activities such 

identification as the Secretary may require showing such employee to be an employee of,

and duly authorized to engage in activities as a farm labor contractor for, a person holding a

valid certificate of registration under the provisions of this Act. Except as provided in the

foregoing provisions of this subsection, any such employee shall be subject to the provisions

of this Act and regulations prescribed hereunder to the same extent as if he were required to

obtain a certificate of registration in his own name.
257

Sec. 4(c) 3

(c) No person shall engage the services o f any farm labor contractor to supply farm

laborers unless he first determines that the farm labor contractor possesses a certificate from

the Secretary that is in full force and effect at the time he contracts with the farm labor

contractor.

(d) Upon determination by the Secretary that any person knowingly has engaged the

services o f any farm labor contractor who does not possess such certificate as required by

subsection (c) o f this section, the Secretary is authorized to deny such person the facilities

and services authorized by the Act o f June 6, 1933 (48 Stat. 113; 29 U.S.C. 49 et seq.),

commonly referred to as the Wagner-Peyser Act, for a period o f up to three years.

ISSUANCE OF CERTIFICATE OF REGISTRATION

SEC. 5. (a) The Secretary shall, after appropriate investigation, issue a certificate of

registration under this Act to any person whcr-

(1) has executed and filed with the Secretary a written application subscribed and

V sworn to by the applicant containing such information (to the best of his knowledge and

belief) concerning his conduct and method of operation as a farm labor contractor as

the Secretary may require in order effectively to carry out the provisions of this Act;

(2) has filed, within such time as the Secretary may prescribe, proof satisfactory to

the Secretary of the financial responsibility of the applicant or proof satisfactory to the

Secretary of the existence of a policy of insurance which insures such applicant against

liability for damages to persons or property arising out of the applicant’s ownership of,

operation of, or his causing to be operated any vehicle for the transportation of migrant

workers in connection with his business, activities, or operations as a farm labor

contractor. In no event shall the amount o f such insurance be less than the amount

currently applicable to vehicles used in the transportation o f passengers in interstate

commerce under the Interstate Commerce Act and regulations promulgated pursuant

thereto, or amounts offering comparable protection to persons or property from

damages arising out o f the applicant’s ownership of, operation of, or his causing to be

operated any vehicle as provided herewith: Provided, That the Secretary shall have the

discretion to issue regulations requiring insurance in the highest amounts feasible which

are less than the amounts currently applicable to vehicles used in the transportation o f

passengers in interstate commerce under the Interstate Commerce Act and regulations

promulgated pursuant thereto, if the Secretary, after due and careful consideration,

determines that the insurance coverage in such amounts is not available to farm labor

contractors in the same manner and in the same amounts as such coverage is available to

other carriers used to transport passengers in interstate commerce;

(3) has filed, within such time as the Secretary may prescribe, a set of his

fingerprints;

(4) has filed, under such terms as the Secretary may prescribe, a statement

identifying each vehicle to be used by the applicant for the transportation o f migrant

workers, and all real property to be used by the applicant for the housing o f migrant

workers, during the period for which registration is sought, along with proof that every

such vehicle and all such housing currently conform to all applicable Federal and State

J safety and health standards to the extent that such vehicle and all such housing are

under the applicant’s ownership or control;and

(5) has consented to designation o f the Secretary as the agent available to accept

service o f summons in any action against such farm labor contractor at any and all times

p during which such farm labor contractor has departed from the jurisdiction in which

such action is commenced or otherwise has become unavailable to accept service, under

such terms and conditions as are set by the court in which such action has been

commenced.

(b) Upon notice and hearing in accordance with regulations prescribed by him, the

Secretary may refuse to issue, and may suspend, revoke, or refuse to renew a certificate of

registration to any farm labor contractor if he finds that such contractor—

(1) knowingly has made any misrepresentations or false statements in his

application for a certificate of registration or any renewal thereof;
258

Sec. 5(b)(2) 4

(2) knowingly has given false or misleading information to migrant workers

concerning the terms, conditions, or existence of agricultural employment;

(3) has failed, without justification, to perform agreements entered into or

arrangements with farm operators;

(4) has failed, without justification, to comply with the terms of any working

arrangements he has made with migrant workers;

(5) has failed to show financial responsibility satisfactory to the Secretary required

by subsection (a)(2) of this section or has failed to keep in effect a policy of insurance

required by subsection (a)(2) of this section;

(6) has recruited, employed, or utilized, with knowledge, the services of any

person, who is an alien not lawfully admitted for permanent residence, or who has not

v

been authorized by the Attorney General to accept employment;

(7) has been convicted of any crime under State or Federal law relating to gambling

or to the sale, distribution, or possession of alcoholic liquors in connection with or

incident to his activities as a farm labor contractor; or has been convicted of any crime )

under State or Federal law involving robbery, bribery, extortion, embezzlement, grand

larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to

kill, assault which inflicts grievous bodily injury, prostitution, or peonage; where the

date o f the judgment o f conviction o f any crime as specified herein has been entered

within a period o f five years preceding the action o f the Secretary under this subsection;

(8) has failed to comply with rules and regulations promulgated by the Interstate

Commerce Commission that are applicable to his activities and operations in interstate

commerce;

(9) knowingly employs or continues to employ any person to whom subsection (b)

of section 4 of this Act applies who has taken any action, except for that listed in

paragraph (5) of this subsection, which could be used by the Secretary under this

subsection to refuse to issue a certificate of registration;

(10) has failed to comply with any of the provisions of this Act or any regulations

issued hereunder;

(11) is not in fact the real party in interest in any such application or certificate o f

registration and that the real party in interest is a person, firm, partnership, association,

or corporation who previously has been denied a certificate o f registration, has had a

certificate o f registration suspended or revoked, or who does not presently qualify for a certificate o f registration; or

(12) has used a vehicle for the transportation o f migrant workers, or has used real

property for the housing o f migrant workers, while such vehicle or real property failed

to conform to all applicable Federal and State safety and health standards, to the extent

any such vehicle or real property has come within the ownership or control o f such farm

labor contractor.

(c) A certificate of registration, once issued, may not be transferred or assigned and

shall be effective for the remainder of the calendar year during which it is issued, unless

suspended or revoked by the Secretary as provided in this Act. A certificate of registration

may be renewed each calendar year upon approval by the Secretary of an application for its

renewal. 4

(d) Persons issued a certificate o f registration under this section shall provide the

Secretary a notice o f each and every address change within ten days after such change. The Secretary shall maintain a public central registry of all persons issued certificates o f

registration under this section. Persons issued a certificate o f registration under this section »

shall provide to the Secretary documentation required under section 5(a)(4) o f the Act

applicable to any vehicle which the applicant obtains for use in the transportation of

migrant workers and any real property which the applicant obtains or learns will be used for

the housing o f migrant workers during the period for which the certificate o f registration is

issued, within ten days after he obtains or learns o f the intended use o f such vehicle or real

property, to the extent that such vehicle or such real property is under the ownership or

control o f such persons who have been issued certificates o f registration.
259

Sec. 6 5

OBLIGATIONS AND PROHIBITIONS

t

>

SEC. 6. Every farm labor contractor shall—

(a) carry his certificate of registration with him at all times while engaging in

activities as a farm labor contractor and exhibit the same to all persons with whom he

intends to deal in his capacity as a farm labor contractor prior to so dealing and shall be

denied the facilities and services authorized by the Act of June 6, 1933 (29 U.S.C. 49 et

seq.), upon refusal or failure to exhibit the same;

(b) ascertain and disclose to each worker at the time the worker is recruited the

following information to the best of his knowledge and belief:

(1) the area of employment,

(2) the crops and operations on which he may be employed,

(3) the transportation, housing, and insurance to be provided him,

(4) the wage rates to be paid him,

(5) the charges to be made by the contractor for his services,

(6) the period o f employment,

(7) the existence o f a Strike or other concerted stoppage, slowdown, or

interruption o f operations by employees at a place o f contracted employment, and

(8) the existence of any arrangements with any owner, proprietor, or agent o f

any commercial or retail establishment in the area of employment under which he is

to receive a commission or any other benefit resulting from any sales provided to

such commercial or retail establishment from the migrant workers whom he

recruits.

The disclosure required under this subsection shall be in writing in a language in which

the worker is fluent, and written in a manner understandable by such workers on such

forms and under such terms and conditions as the Secretary shall prescribe.

(c) upon arrival at a given place of employment, post in a conspicuous place a

written statement of the terms and conditions of that employment;

(d) in the event he manages, supervises, or otherwise controls the housing facilities, 

post in a conspicuous place the terms and conditions of occupancy;

(e) in the event he pays migrant workers engaged in agricultural employment,

either on his own behalf or on behalf of another person, keep payroll records which 

shall show for each worker total earnings in each payroll period, all withholdings from

wages, and net earnings. In addition, for workers employed on a time basis, the number

of units of time employed and the rate per unit of time shall be recorded on the payroll

records, and for workers employed on a piece rate basis, the number of units of work 

performed and the rate per unit shall be recorded on such records. In addition he shall

provide to each migrant worker engaged in agricultural employment with whom he deals

in a capacity as a farm labor contractor a statement of all sums paid to him (including

sums received on behalf of such migrant worker) on account of the labor of such

migrant worker. He shall also provide each such worker with an itemized statement

showing all sums withheld by him from the amount he received on account of the labor

of such worker, and the purpose for which withheld. He shall additionally provide to the

person to whom any migrant worker is furnished all information and records required to

be kept by such contractor under this subsection, and all information required to be

provided to any migrant worker under this subsection. The Secretary may prescribe

appropriate forms for the recording of information required by this subsection;

(f) refrain from recruiting, employing, or utilizing, with knowledge, the services of

any person, who is an alien not lawfully admitted for permanent residence or who has

not been authorized by the Attorney General to accept employment;

(g) promptly pay or contribute when due to the individuals entitled thereto all

moneys or other things o f value entrusted to the farm labor contractor by any farm

operator for such purposes; and
260

Sec. 6(h) 6

(h) refrain from requiring any worker to purchase any goods solely from such farm

labor contractor or any other person.

AUTHORITY TO OBTAIN INFORMATION

SEC. 7 The Secretary or his designated representative may investigate and gather data

with respect to matters which may aid in carrying out the provisions of this Act. In any case

in which a complaint has been filed with the Secretary regarding a violation of this Act or

with respect to which the Secretary has reasonable grounds to believe that a farm labor

contractor has violated any provisions of this Act, the Secretary or his designated

representative may investigate and gather data respecting such case, and may, in connection

therewith, enter and inspect such places and such records (and make such transcriptions

thereof), question such persons, and investigate such facts, conditions, practices, or matters

as may be necessary or appropriate to determine whether a violation of this Act has been

committed. The Secretary may issue subpenas requiring the attendance and testimony of

witnesses or the production o f any evidence in connection with such investigations. The

Secretary may administer oaths and affirmations, examine witnesses, and receive evidence.

For the purpose o f any hearing or investigation provided for in this chapter, the provisions

o f sections 9 and 10 o f the Federal Trade Commission Act o f September 16, 1914 (15

U.S.C. 49, 50) (relating to the attendance o f witnesses and the production o f books, papers,

and documents), are made applicable to the jurisdiction, powers, and duties o f the

Secretary. The Secretary shall conduct investigations in a manner which protects the

confidentiality o f any complainant or other party who provides information to the

Secretary with respect to which the Secretary commences an investigation. The Secretary

shall monitor and investigate activities o f farm labor contractors in such manner as is

necessary to enforce the provisions of this Act.

AGREEMENTS WITH FEDERAL AND STATE AGENCIES

SEC. 8. The Secretary is authorized to enter into agreements with Federal and State

agencies, to utilize (pursuant to such agreements) the facilities and services of the agencies,

and to delegate to the agencies such authority, other than rulemaking, as he deems necessary 

in carrying out the provisions of this Act, and to allocate or transfer funds or otherwise to

pay or to reimburse such agencies for expenses in connection therewith.

PENALTY PROVISIONS

SEC. 9. (a) Any farm labor contractor or employee thereof who willfully and knowingly

violates any provision of this Act shall be fined not more than $500, sentenced to a prison

term not to exceed one year, or both, and upon conviction for any subsequent violation,

shall be punishable by a fine not to exceed $10,000 or sentenced to a prison term not to

exceed three years, or both. The Secretary shall report on enforcement o f the provisions of

this Act in the annual report o f the Secretary required pursuant to section 9 o f the Act

entitled “An Act to create a Department o f Labor", approved March 4, 1913 (37 Stat. 738,

29 U.S.C. 560). The reporting hereunder shall include, but shall not be limited to, a

description of efforts to monitor and investigate the activities of farm labor contractors, the

number o f persons to whom certificates o f registration have been issued, the number of

complaints o f violation received by the Secretary and their disposition, and the number and

nature o f any sanctions imposed.

(b) (1) Any person who commits a violation o f this Act or any regulations promulgated

under this Act, may be assessed a civil money penalty o f not more than $1,000 for each

violation. The penalty shall be assessed by the Secretary upon written notice, under the

procedures set forth herein.
261

Sec. 9(b)(2) 7

(2) The person assessed shall be afforded an opportunity fo r agency hearing, upon

request made within thirty days after the date o f issuance o f the notice o f assessment. In

such hearing, all issues shall be determined on the record pursuant to section 554 o f title 5,

United States Code. The agency determination shall be made by final order subject to

review only as provided in paragraph (3). I f no hearing is requested as herein provided, the

assessment shall constitute a final and unappealable order.

(3) Any person against whom an order imposing a civil money penalty has been entered

after an agency hearing under this section may obtain review by the United States district

court fo r any district in which he is located or the United States District Court for the

District o f Columbia by filing a notice o f appeal in such court within thirty days from the

, date o f such order, and simultaneously sending a copy o f such notice by registered mail to

the Secretary. The Secretary shall prom ptly certify and file in such court the record upon

which the penalty was imposed. The findings o f the Secretary shall be set aside if found to

be unsupported by substantial evidence as provided by section 706(2)(E) o f title 5, United

States Code.

(4) I f any person fails to pay an assessment after it has become a final and unappealable

order, or after the court has entered final judgment in favor o f the agency, the Secretary

shall refer the matter to the Attorney General, who shall recover the amount assessed by

action in the appropriate United States district court. In such action the validity and

appropriateness o f the final order imposing the penalty shall not be subject to review.

(5) A ll penalties collected under authority o f this section shall be paid into the Treasury

o f the United States.

(c) Notwithstanding subsections (a) and (b) o f this section, any farm labor contractor

who commits a violation o f subsection 6(f) o f the Act or any regulations promulgated

thereunder shall upon conviction be fined not to exceed $10,000 or sentenced to a prison

term not to exceed three years, or both, i f the person committing such violation has failed

to obtain a certificate o f registration pursuant to this A c t or is one whose certificate has

been suspended or revoked by the Secretary.

APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT

SEC. 10. The provisions of the Administrative Procedure Act (5 U.S.C. 1001 and the

following) shall apply to all administrative proceedings conducted pursuant to the authority

contained in this Act.

JUDICIAL REVIEW

SEC. 11. Any person aggrieved by any order of the Secretary in refusing to issue or

renew, or in suspending or revoking, a certificate of registration may obtain a review of any

such order by filing in the district court of the United States for the district wherein such

person resides or has his principal place of business, or in the United States District Court

for the District of Columbia, and serving upon the Secretary, within thirty days after the

entry of such order, a written petition praying that the order of the Secretary be modified

4 or set aside in whole or in part. Upon receipt of any such petition, the Secretary shall file in

such court a full, true, and correct copy of the transcript of the proceedings upon which the

order complained of was entered. Upon the filing of such petition and receipt of such

transcript, such court shall have jurisdiction to affirm, set aside, modify, or enforce such

order, in whole or in part. In any such review, the findings of fact of the Secretary shall not

be set aside if supported by substantial evidence. The judgment and decree of the court shall

be final, subject to review as provided in sections 1254 and 1291 of title 28, United States

Code.
262

Sec. 12(a) 8

CIVIL RELIEF

SEC. 12. (a) Any person claiming to be aggrieved by the violation o f any provision o f

this Act or any regulation prescribed hereunder may file suit in any district court o f the

United States having jurisdiction o f the parties without respect to the amount in

controversy or without regard to the citizenship o f the parties and without regard to

exhaustion o f any alternative administrative remedies provided herein.

(b) Upon application by the complainant and in such circumstances as the court may

deem just, the court may appoint an attorney for such complainant and may authorize the

commencement o f the action. If the court finds that the respondent has intentionally

violated any provision o f this Act or any regulation prescribed hereunder, it may award 4,

damages up to and including an amount equal to the amount o f actual damages, or $500 for

each violation, or other equitable relief. Any civil action brought under this section shall be

subject to appeal as provided in chapter 83 o f title 28, United States Code.

(c) If upon investigation the Secretary determines that the provisions o f this Act have )

been violated, he may petition any appropriate district court o f the United States for

temporary or permanent injunctive relief.

(d) Except as provided in section 518(a) o f title 28, United States Code, relating to

litigation before the Supreme Court, the Solicitor o f Labor may appear for and represent

the Secretary in any civil litigation brought under this Act but all such litigation shall be

subject to the direction and control o f the Attorney General.

DISCRIMINA TION PROHIBITED

SEC. 13. (a) No person shall intimidate, threaten, restrain, coerce, blacklist, discharge,

or in any manner discriminate against any migrant worker because such worker has, with

just cause, filed any complaint or instituted or caused to be instituted any proceeding under

or related to this Act or has testified or is about to testify in any such proceedings or

because o f the exercise, with just cause, by such worker on behalf o f himself or others o f

any right or protection afforded by this Act.

(b) Any worker who believes, with just cause, that he has been discriminated against by

any person in violation o f this section may, within one hundred eighty days after such

violation occurs, file a complaint with the Secretary alleging such discrimination. Upon

receipt o f such complaint, the Secretary shall cause such investigation to be made as he

deems appropriate. If upon such investigation, the Secretary determines that the provisions

o f this section have been violated, he shall bring an action in any appropriate United States

district court against such person. In any such action, the United States district courts shall

have jurisdiction, for cause shown, to restrain violation o f subsection (a) and order all

appropriate relief including rehiring or reinstatement o f the worker, with back pay, or

damages.

RECORDKEEPING

SEC. 14. Any person who is furnished any migrant worker by a farm labor contractor 4

shall maintain all payroll records required to be kept by such person under Federal law, and

with respect to migrant workers paid by a farm labor contractor such person shall also

obtain from the contractor and maintain records containing the information required to be

provided to him by the contractor under section 6(e) o f the Act. j
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Sec. 15 9

STATE LAWS AND REGULATIONS

SEC. 15. This Act and the provisions contained herein are intended to supplement State

action and compliance with this Act shall not excuse anyone from compliance with

appropriate State law and regulation.

SEVERABILITY

SEC. 16. If any provision of this Act, or the application thereof to any person or

circumstance, shall be held invalid, the remainder of the Act and the application of such

\ provision to other persons or circumstances shall not be affected thereby.

RULES AND REGULATIONS

» SEC. 17. The Secretary is authorized to issue such rules and regulations as he determines

necessary for the purpose of carrying out the provisions of this Act.

WAIVER OF RIGHTS

SEC. 18. Any agreement by an employee purporting to waive or to modify his rights

hereunder shall be void as contrary to public policy, except a waiver or modification of

rights or obligations hereunder in favor o f the Secretary shall be valid for purposes of

enforcement o f the provisions of the Act.

A UTHORIZA TION OF APPROPRIA TIONS

SEC. 19. There are authorized to be appropriated to carry out the purposes o f this Act

such sums as may be necessary for the effective enforcement o f this Act.

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Legislative History (Public Law 88-582):

Hoifse Report No. 358 accompanying H.R. 6242 (Comm, on Education and Labor).

Senate Report No. 202 (Comm, on Labor and Public Welfare).

Congressional Record:

Volume 109 (1963): June 11, considered and passed Senate.

Volume 110 (1964): Aug. 17, considered and passed House, amended, in lieu of H.R. 6242.

Aug. 21, Senate agreed to House amendment.

Legislative History (Public Law 93-518):

House Report No. 93-1493 accompanying H.R. 17474 (Comm, on Education and Labor).

Senate Report No. 93-1295 (Comm, on Labor and Public Welfare).

Congressional Record, Vol. 120 (1974):

Nov. 22, considered and passed Senate. .

Nov. 26, considered and passed House. {

Weekly compilation of Presidential Documents, Vol. 10, No. 50:

Dec. 9, Presidential statement.

Legislative History (Public Law 94-259):

House Report No. 94-441 (Comm, on Agriculture).

Senate Report No. 94-706 (Comm, on Agriculture and Forestry).

Congressional Record:

Vol. 121 (1975): Nov. 7, considered and passed House.

Vol. 122 (1976): Mar. 23, considered and passed Senate, amended.

Mar. 24, House concurred in Senate amendments.

Weekly compilation of Presidential Documents:

Vol. 12, No. 15 (1976): Apr. 5, Presidential statement.

Legislative History (Public Law 94-561):

House Report No. 95-1620, accompanying H.R. 13845 (Comm, on Agriculture).

Senate Report No. 95-1156 (Comm, on Agriculture, Nutrition, and Forestry).

Congressional Record, Vol. 124 (1978):

Sept. 8, considered and passed Senate.

Oct. 3, 4, H.R. 13854 considered and passed House; passage vacated and S. 976 amended, passed in

lieu.

Oct. 13, Senate concurred in House amendments with an amendment.

Oct. 13, House concurred in Senate amendment.

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