By: Samantha Natera

Editorial Credit: Simone Hogan / Shutterstock.com
Editorial Credit: Simone Hogan / Shutterstock.com

Introduction
When looking at the U.S. food industry, we sometimes forget the hands that feed us. These hands are often invisible, meaning that we often overlook those who tend the crops and harvest the fields and instead focus on food stores and restaurants. Food corporations and big chain stores do not usually show the agricultural side of food production and how food is brought to consumers. This in turn leads to a lack of awareness of the hard work that farmworkers, one of the most vulnerable segments of the labor force, perform in U.S. food systems. These corporations and chain stores are part of what is called corporate agriculture. Corporate agriculture often diminishes small-farming opportunities. This and poor working conditions, relatively low wages, and job availability in other sectors of the economy causes U.S. workers to choose other jobs over farm work. This leaves farm work to mostly foreign-born workers who are willing to endure harsh working conditions as they struggle to provide for their families. These workers often lack basic labor protections such as overtime pay, sick pay, health insurance, disability insurance and, in some states, worker’s compensation.
Although the U.S. is not a signatory, the rights for workers under international law are covered under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and there are additional protections under the International Labor Organization (ILO). Still, the working and living conditions of migrant farmworkers tend to be dangerous and characterized by low wages and few benefits, leaving them without the basic worker rights enjoyed by U.S. workers in most other sectors and enshrined in international law. Vulnerable to the whims of employers and immigration officials, farmworkers are often not able to fight for their rights and it is up to organizations that are devoted to help these workers to try to make improvements. This essay argues that farmworkers should have the right to bargain collectively and that minimum standards of worker protections should be Federally regulated.

Background
Race has played a central role in American history, causing divisions, separation, and inequalities across the nation. Further, recent social movements like Black Lives Matter have led to the realization that the battle against injustice and inequality has not ended. Ethno-racial minorities are significantly underrepresented in government positions, which contributes to the paucity of policies that benefit people of color. High moral character and a strong work ethic are not enough to create equal opportunities in contexts of structured inequalities. Differences in status and opportunities between White Americans and ethno-racial minority groups demonstrate this is the case. Communities of color do not enjoy the many resources or benefits available in this country. Racial injustice has shaped the patterns of inequality in opportunities and privileges.
Racial disparity has been evident in immigration policies, which also have been shaped by racist views. A clear example is the 1954 Immigration and Naturalization Service (INS) deportation initiative known as “Operation Wetback.” This operation not only deported Mexican undocumented immigrants, but also many who were here legally and many who were citizens. There are likewise racial disparities in labor certification preferences for applicants, with certification officials having preferences for Asian workers over those from Latin America. In addition, in the 1970s, there were many restrictions that caused backlogs of approximately three years, and such patterns likely continue today. The point here is that discrimination and unfair practices against farmworkers it is not something new. Yet, as elected leaders try to correct these injustices farmworkers should also be able to enjoy basic human rights and have the right to organize and collectively bargain.
The majority of seasonal and migrant farmworkers come from other countries. Seasonal farmworkers are individuals employed in agriculture on a less than year-round basis. Migrant farmworkers are defined in the same way with a small difference—they are absent from a permanent place of residence at least a portion of the year as they pursue employment across the nation’s farms. Although figures vary, it is estimated that there are approximately 3 million migrant and seasonal farmworkers in the U.S., most of whom are foreign-born. More than half of them were born in Mexico, with many others born in Central American or Caribbean countries. Many of these workers cannot speak English fluently, and some speak indigenous languages and have limited command of Spanish. Consequently, their inability to effectively communicate also makes some farmworkers more vulnerable to mistreatment and exploitation.
Migrant and seasonal farmworkers help sustain the food supply in the U.S., and even though they hold essential jobs, they are not granted the same rights had by other workers. These rights often depend on how workers are defined under the law. Since definitions of workers are important for federal and state services, the rights of farmworkers as employees should be the same as those of other workers when talking about U.S. obligations to them. This is all the more so given that farmworkers are an essential part of life sustenance.
Sometimes farmworkers are treated as machines: working in fields, nurseries or packinghouses for more than twelve hours a day, in harsh conditions, while being paid wages that do not permit them to rise above the poverty level. Although there are many organizations working to improve their working conditions, much remains to be done. Rights violations include poor housing and working conditions, unlawfully low wages, lack of overtime payment in most instances, and a lack of protected rights to organize and form unions, among other things.

Collective Bargaining
Collective bargaining is the process by which working people negotiate labor contract terms with their employers. The National Labor Relation Act’s (NLRA; 1938) is a federal statute that protects the rights of workers who seek to act collectively. Many farmworkers have low educational levels and this, along with having to travel to various states, all with differing laws, and being in those states for short periods of time, contribute to a lack of understanding of their rights. Their movements also affect their understanding of workers’ rights and their ability to communicate with other farmworkers concerns about difficult working conditions.
While farmworkers are excluded from the provisions of the NLRA, they are legally free to organize. However, while the NLRA protects the rights of workers who seek to act collectively and prohibits employer discrimination and retaliation against those seeking to organize, it does not protect farmworkers who seek to form a union and engage in collective bargaining. Agricultural employers are not required to bargain in good faith with an organization of farmworkers regarding the terms and conditions of employment.
Additionally, collective bargaining rights were granted to U.S. workers through different series of laws and these rights are also recognized by the international human rights conventions, although the U.S. is not a signatory to these agreements. Consequently, organizations like the American Civil Liberties Union (ACLU) have supported the right of workers to organize unions throughout the years. As the ACLU explains, individual workers lack the bargaining power to negotiate employment terms. As such, having a representative, such as a union, can help level the field between workers and employers by facilitating negotiations on behalf of a group of workers.

Laws that Protect the Right to Collective Bargaining
The First Amendment protects the rights of individuals to associate. It states the following: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” When workers assemble to share their grievances about employment issues, they are exercising a civil right. This protection is from actions by government actors, but not from private or corporate actors. While they can assemble, they still do not have an organization that can represent them collectively, and farmers are not required to recognize them in terms of collective bargaining.
This proposition is illustrated by the case of Maldonado v. Lucca. In this case, farmworkers contended that their crew leader and the farmer whose crops they picked failed to pay them the minimum hourly wage. In some instances, including in Maldonado, farm owners and crew leaders are joint employers and as a result are jointly responsible for compliance with the Fair Labor Standards Act (FLSA; 1938), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA; 1983) to protect farmworkers from being exploited and to secure safe working conditions for them. The MSPA in particular provides protections in the areas of transportation, housing, and pay, as well as work-related protections against occupational hazards. Yet, enforcement remains a challenge at the local level, and farmworkers generally remain unable to promote their interests through collective bargaining.
Under the NLRA agricultural laborers or farmworkers are not part of the definition of “employee” set by Congress and are thereby exempted from the statute. This means that it is up to states to extend farmworkers protections when they seek to organize and collectively bargain with their employers.

Comparing States Legislation
Most states have not adopted any collective bargaining legislation. Additionally, some state laws contain a broader definition of an agricultural employee. In any case, the issue is that the protection of employees to organize is mostly denied because of the definition of agricultural employers covered under the NLRA. Another issue relates to the seasonal nature of some agricultural work, as previously discussed.
Let us turn to different state policies and how collective bargaining has been addressed. In Kansas, definitions of “employees” are limited and do not protect groups that should be protected under this Act, such as farmworkers. Further, Kansas limits the methods for solving disputes and this aggravates the problem of resolving employment disputes.
Under KAN. STAT. ANN. § 44-819(c), Kansas law covers employers who employ six or more employees for twenty or more days of any calendar month in the six months preceding the filing for recognition by such employees. Some states’ legislations are designed to protect the employer, thus having a disparate effect on workers. Additionally, based on the theory that work stoppages in agriculture could seriously interrupt food production and distribution, Kansas has limited the right to strike.
A critical issue in Kansas is that the state does not address whether seasonal and permanent farmworkers should be included in a unit. If States are left to make their own policies for collective bargaining in agriculture, this will continue to vary, and many farmworkers will still be unprotected from unfair practices.
By contrast, California has a broad definition of agricultural employer which in turn helps to protect agricultural employees from unfair practices. California has had an agricultural labor relations law since the late 1970s. This is due to the organizing efforts of Mexican American, Mexican, and Filipino farmworkers. Additionally, California’s Agricultural Relations Act, is the most comprehensive of the current state laws.
The California Agricultural Labor Relations Act (ALRA) is a reenactment of the NLRA with different provisions regarding agricultural labor relations. The ALRA provides the election process as the sole means for a union to be certified as a bargaining representative and, by an unfair labor section, makes it an unfair labor practice for an employer to recognize a union not certified according to ALRA. Consequently, it is designed to encourage collective bargaining and provides broader rights coverage than does the NLRA. The ALRA also prevents distinctions between seasonal and permanent workers and thereby provides better protection for farmworkers. These state provisions under California state law could serve as an example for future federal legislation.
Lastly, in Michigan where a number of crops are hand-harvested, farmworkers have experienced poor working conditions such as wage theft and labor trafficking, among others. However, this does not only happen in Michigan; unfortunately, this happens in many agricultural states. Michigan has considered legislative proposals in past years to include workers not covered under the NLRA for protections. Some examples of these proposals are: amending the Michigan Constitution to guarantee the right to form unions and negotiate contracts to public and private employees in the areas of wages, hours and conditions of work; invalidating any existing or future state or local laws that impede joining a union, bargaining collectively or negotiating and enforcing collective bargaining agreements; overriding any state laws that currently regulate work hours or conditions to the extent they conflict with collective bargaining agreements; defining an employer as any person or entity employing one or more employees; and not prohibiting public employees from striking.
Consequently, there are states that have or are making attempts to include agricultural employees within the NLRA definition and thus provide more protections under the law. However, this is a slow process, and it will not be uniform throughout the U.S. Thus, it would prove a better option to include with uniform Federal legislation farmworkers under the NLRA definition so they can have the protections other workers enjoy.
Collective bargaining protects worker’s rights by also protecting individual rights. For example, cases about gender discrimination in the workplace have helped people understand how collective action helps secure and enforce individual rights. Farmworkers should have the right to bargain collectively for fair terms and conditions of employment, and to pursue their collective interests by engaging in strikes if necessary without fear of retaliation. States can grant those rights through legislation even if the National Labor Relations Act does not include them. California, for example, granted them that right in 1975 through landmark legislation.

How Collective Bargaining will Help Farmworkers
Farmworkers are essential workers whose labor has benefitted Americans for over a century. Even as they have provided their invaluable and indispensable labor, farmworkers have faced injustice. One such injustice is not enjoying the protections of the NLRA when they seek to organize.
One solution would be to remove the agricultural worker exemption under the NLRA. This would free farmworkers from dependence on state legislatures, some of which have been openly hostile to farmworkers, especially as anti-immigrant sentiments have intensified. While there have been initiatives to have the NLRA cover all agricultural employees, none have been successful to date. The need for NLRA coverage is all the more important as family farms have declined and large-scale farms have increased. In effect, by excluding farmworkers, the NRLA exempts large-scale farms from national collective bargaining law. Congress, however, has not had a strong incentive to protect farmworkers’ rights.
As the NLRA states “experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce.” This means that the right to organize is beneficial for commerce. Nevertheless, Congress has excluded farmworkers from the NLRA’s organizing and collective bargaining protections. One reason offered for the exclusion was the perceived hardship that inclusion under the NLRA would impose on small farms. It was argued that if harvests were interrupted by strikes, agricultural commodities would be damaged. Yet, this is not different in terms of how other employers are damaged by a strike.
Moreover, farmworkers are precisely the type of employees who would benefit most from collective bargaining and for which the NLRA was enacted. However, there are unique challenges in organizing workers employed on a seasonal basis given the short duration of their employment, but that can be worked out organizationally and legislatively. Once farmworkers are organized there could be negotiations with employers regarding the terms and conditions of employment. Thus, collective bargaining would help farmworkers to negotiate directly with their employers.
Federal legislation protecting the right of farmworkers to bargain collectively would help balance the respective positions of agricultural and industrial workers. Plainly, having uniform federal regulation for agricultural labor relations would be more beneficial than having multiple and conflicting individual state laws. Uniform federal legislation would provide minimum federal standards for agricultural labor relations. Under pre-exemption principles, state laws would, at a minimum, be required to meet the federal standards. This would be similar to the operation of the Occupational Safety and Health Act (OSHA), where the minimum federal standards apply, with states free to enact more stringent protections. There have been difficulties in implementing minimum federal standards and the feasibility of including farmworkers within the National Labor Relations Act might depend on the law’s treatment of other seasonal industries. The best solution is to include agricultural labor under the NLRA.

Conclusion
The COVID-19 pandemic has shown how important farmworkers are to the nation’s food supply. Farmers rely on migrant and local seasonal workers to help with the food supply. As essential workers, farmworkers cannot stay at home during the pandemic and must go to work in order to keep food systems functioning, putting them at increased risk for exposure to the virus. Increasingly, farmers are relying on H-2A workers to help with harvests and COVID-19 has impacted the farmers’ ability to bring these workers into the U.S. At the beginning of 2020, the U.S. Department of State announced that it would stop processing visas in Mexico. In response to the pandemic, the State Department decided to resume and simplify H-2A visa processing. Because of the importance of this work, the Department of State decided to waive the in-person visa interview requirements for H-2A applicants.
There are many factors impacting working conditions for farmworkers, including the anti-immigration political environment that President Trump and some elected officials promoted, which negatively impacted farmworkers and their willingness to travel to farm sites. Many farmworkers continue to worry that working conditions in the agricultural fields and packing facilities put them at risk for contracting the novel corona virus. Regrettably, it took a public health crisis to occur in order to once again reveal the critical importance of farmworkers to our food systems and the nation’s economy. Perhaps this recognition may have a positive impact in future reform efforts to grant farmworkers collective bargaining protections.
The ability to collectively bargain would allow farmworkers to negotiate safer working conditions during the pandemic and into the future. Farmworkers’ right to collective bargaining would be best regulated by the Federal Government and not left to the discretion of the states. By doing this, legislation would be uniform, and more workers would be protected. These rights would then protect farmworkers from retaliation for speaking about unfair working conditions. This is not just about fairness; it is about ensuring that the most vulnerable but essential segment of our labor force is able to bargain collectively for fair wages and safe working conditions.

Endnotes
1Samantha is a third-year student at The University of Kansas School of Law with an interest in international law.