` THE FRUITS OF THE PAST: The Unfair Consequences of Excluding Massachusetts Farmworkers from State Labor Law Protections and How the Fairness for Farmworkers Act Will Remedy That Injustice REPORT | AUGUST 2021 Diego V. (2021) Acknowledgments The Fairness for Farmworkers Coalition thanks Senators Adam Gomez and Adam Hinds, and Representatives Carlos Gonzalez and Paul Mark for their sponsorship of the Fairness for Farmworkers Act.1 The coalition would also like to thank the very talented young student, Diego V., who painted the farmworker art included in this report. The Fairness for Farmworkers Coalition comprises individuals from the: ACLU of Massachusetts, Central West Justice Center, Connecticut River Valley Farmworkers Health Program, Massachusetts Law Reform Institute, and the Pioneer Valley Workers Center. This report was prepared by the Fairness for Farmworkers Coalition with invaluable research and drafting help by various law students, including students: from the Civil Rights Clinic at Boston College Law School2 working under the supervision of Professor Reena Parikh, Maya McCann, Northeastern University School of Law, as part of her co-op working with Central West Justice Center under the supervision of attorney Claudia Quintero, and Katherine Stathulis, Northeastern University School of Law, as part of her co-op working with the ACLU of Massachusetts’ Legislative Department. Final review and edits by the Fairness for Farmworker Coalition. The Fairness for Farmworkers Act is supported by: ACLU of Massachusetts Central West Justice Center Connecticut River Valley Farmworkers Health Program Massachusetts Immigrant and Refugee Advocacy (MIRA) Coalition Massachusetts Law Reform Institute Pioneer Valley Workers Center Western Massachusetts, Area Labor Federation Massachusetts AFL-CIO United Food and Commercial Workers (UFCW), Local 1459 1 An Act establishing fairness for agricultural laborers, H.1979, 2021 Leg., 192nd Session (Mass. 2021), https://malegislature.gov/Bills/192/HD2312; An Act establishing fairness for agricultural workers, S.1205, 2021 Leg., 192nd Session, https://malegislature.gov/Bills/192/SD1895. 2 The views represented herein do not purport to represent the views of Boston College Law School. 2 A report by the Fairness for Farmworkers Coalition Table of Contents Acknowledgments 2 Call to Action 4 Executive Summary 5 Introduction 8 I. The Landscape: Small Farms but Big Business for the Commonwealth 10 II. Migrant and Seasonal Farmworkers: Who They Are and What They Earn 15 III. Reap What you Sow: Denying Farmworkers Basic Workplace Rights Is an American Grown Problem 18 IV. A Failed Legal Legacy: The Economic and Social Costs of Excluding Farmworkers from Massachusetts Wage and Hour Protections 21 V. The Price for Equity: Raising Wages for Farmworkers is a Sustainable Economic Model for Farmers 29 VI. Harvesting Justice Across the U.S.: States are Heeding the Call to Fix this Harvest of Shame 32 Conclusion 34 Appendix 35 An Act establishing fairness for agricultural laborers 35 Section-by-Section Description 36 Endnotes 37 3 The Fruits of the Past Call to Action PASS THE FAIRNESS FOR FARMWORKERS ACT t is Time for Massachusetts to Act. Passing the Fairness for Farmworkers Act (FFA), currently before the Massachusetts legislature, will end the second-class treatment of farmworkers under our state’s wage and hour law. The bill has three I essential parts: • First, the FFA repeals the $8.00 substandard minimum wage for agricultural and farm work. All farmworkers will be paid the state minimum wage. • Second, the FFA provides overtime pay for all farmworkers. Seasonal farmworkers will receive one and a half times their normal rate of pay for work performed in excess of fifty-five (55) hours in a week. Year-round farmworkers, like other hourly employees, will receive time and a half for all hours worked in excess of forty (40). • Third, the FFA establishes the right to a day of rest each week for seasonal farmworkers and provides overtime pay at time and a half for workers who elect to work on that day of rest. The Fairness for Farmworkers Act makes the farmworkers’ minimum wage the same as all other essential workers in the food supply chain – e.g., meat packers, food processors and grocery store workers. It recognizes the dignity, diligence, skill and hard work of these essential workers. The text of the FFA and a section-by-section analysis are included in the Appendix. 4 A report by the Fairness for Farmworkers Coalition Farming is particularly important in Executive Summary Hampshire, Worcester, Berkshire, Farmworkers across Massachusetts plant Franklin, and Plymouth counties.8 Farms and harvest fruits and vegetables, raise in Massachusetts cultivate and harvest a livestock, and tend to orchards and wide range of crops, which account for nurseries. It is both highly skilled and often 77% of Massachusetts agricultural sales, back-breaking work. Yet, Massachusetts the remaining 23% of agricultural sales law excludes farmworkers from important are those from livestock and poultry.9 labor protections afforded the rest of the According to the Massachusetts Food workforce.1 Policy council, Massachusetts ranks third in the nation for the average per-farm State law guarantees most workers a agricultural products sold directly to minimum wage of $13.50 per hour, one consumers.10 day of rest a week, and overtime after 40 hours worked per week.2 In contrast, The Worker: Migrant and Seasonal Massachusetts law provides farmworkers Farmworkers Feed the Commonwealth with a substandard minimum wage of A majority of the 13,000 farmworkers $8.00 per hour,3 allows them to be engage in seasonal, rather than year- required to work seven days a week, and round, farm work. Approximately 60% does not require farm employers to pay are employed as farmworkers for fewer overtime wage4 rates even though they than 150 days each year.11 Compared to may work 12 hours a day and 60 hours or all other families in Massachusetts, twice more per week during the planting and as many farmworker families live in harvesting seasons. severe poverty – 17.6% compared to 8.3%. It is time to guarantee farmworkers the And 38% of farmworker families live at or same fundamental rights that near poverty compared to 16.9% of all Massachusetts wage and hour law has long other families in Massachusetts.12 provided to other workers in this state. Massachusetts farmworkers are The decades-long exclusion of disproportionately immigrants, as farmworkers from Massachusetts’ labor illustrated by data from the Connecticut laws is an unsustainable moral and River Valley Farmworker Health Program economic stain on our state’s protective (CRVFHP).13 In 2019, nearly 90% of labor standards. It is time to right this CRVFHP’s Massachusetts-based patients wrong and pass the Fairness for were born abroad, overwhelmingly Farmworkers Act. coming from Central American nations and Jamaica.14 Farmworkers who are The Landscape: Small Farms but Big seasonal H-2A visa holders account for a Business for the Commonwealth relatively small percentage, Massachusetts has over 7,000 farms. approximately 4%, of hired farmworkers These farms employ more than 13,000 in the Commonwealth.15 An estimated farmworkers and produce more than 59% of farmworkers are men and 41% are $475,000,000 in agricultural goods each women.16 The average age of 5 year. The average size of a farm in the Massachusetts farmworkers is 32, state is 68 acres; many farms are less than whereas the average age of all workers in 6 50 acres. Only about one-third of the the Commonwealth is 41.17 farms in the state employ farmworkers.7 5 The Fruits of the Past Reap What you Sow: Denying physically demanding, fast-paced work Farmworkers Basic Workplace Rights environment.22 Agricultural workers, Is an American Grown Problem alongside fishermen, experience the Farmworkers were excluded from the highest rate of occupational fatalities in basic labor protections that most Massachusetts.23 Risks to health and American workers won during the New safety compound the social and economic Deal era. It is now widely recognized that deprivations farmworkers experience excluding farmworkers from the landmark from the poverty-inducing agricultural workplace legislation of the 1930s – the subminimum wage.24 National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) – was The Price for Equity: Raising Wages for designed to reinforce Jim Crow Farmworkers is a Sustainable segregation and provide state sanction for Economic Model for Farmers the economic exploitation of African- A recent report published by the American farmworkers at that time.18 University of Massachusetts Political Exploitive vestiges of this thinly-veiled, Economy Research Institute (PERI) race-based exclusion from minimal labor indicates that changes proposed by the standards continue to present a moral, Fairness for Farmworkers Act would social and economic dilemma for our result in a nominal increase for most nation. Subsequent Congressional farm’s annual production costs, raising amendments to the FLSA in the latter part costs by an average of 1.3%.25 This of the twentieth century finally minimal increase in labor costs can be established a minimum wage standard for offset by small price increases - a few cents agricultural workers, but otherwise for most products - that will barely be maintained farmworker’s second-class noticed by consumers.26 employee status, denying them overtime The fact that only minimal price increases pay rates under FLSA.19