[Senate Hearing 110-889]
[From the U.S. Government Publishing Office]
S. Hrg. 110-889
ENDING ABUSES AND IMPROVING WORKING CONDITIONS FOR TOMATO WORKERS
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
EXAMINING ENDING ABUSES AND IMPROVING WORKING CONDITIONS FOR TOMATO
WORKERS
__________
APRIL 15, 2008
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Ilyse Schuman, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, APRIL 15, 2008
Page
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont,
opening statement.............................................. 1
Kennedy, Hon. Edward M., Chairman, Committee on Health,
Education, Labor, and Pensions................................. 1
Durbin, Hon. Richard, a U.S. Senator from the State of Illinois.. 5
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio....... 7
Benitez, Lucas, Former Tomato Worker and Co-founder, Coalition of
Immokalee Workers, Immokalee, FL............................... 9
Prepared statement........................................... 11
Frost, Charlie, Detective, Collier County Anti-Trafficking Unit,
Naples, FL..................................................... 15
Prepared statement........................................... 17
Schlosser, Eric, Investigative Reporter, Monterey, CA............ 19
Prepared statement........................................... 20
Bauer, Mary, Director, Immigrant Justice Project, Southern
Poverty Law Center, Montgomery, AL............................. 24
Prepared statement........................................... 25
Brown, Reggie, Executive Vice President, Florida Tomato Growers
Exchange, Maitland, FL......................................... 31
Prepared statement........................................... 33
Reyna, Roy, Farm Manager, Immokalee, FL.......................... 37
Prepared statement........................................... 38
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Letters:
Law Professors........................................... 56
Letter from McDonald's USA, LLC.......................... 61
(iii)
ENDING ABUSES AND IMPROVING WORKING CONDITIONS FOR TOMATO WORKERS
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TUESDAY, APRIL 15, 2008
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:01 a.m., in
Room SD-430, Dirksen Senate Office Building, Hon. Bernard
Sanders, presiding.
Present: Senators Sanders, Kennedy, and Brown.
Also Present: Senator Durbin.
Opening Statement of Senator Sanders
Senator Sanders. Good morning, and thank you all for being
here. Please sit down.
I am going to make a statement in a moment. But first, I
want to introduce the Chairman of the committee, who was kind
enough to put this hearing together, and we very much
appreciate what he is doing today and what he has done for so
many years to protect the needs of American workers.
Senator Kennedy.
Opening Statement of Senator Kennedy
The Chairman. Well, good morning. First of all, let me
thank Senator Sanders for being willing to chair these hearings
and for all of the good work that he has been doing on this
issue, as well as many others. He has been a real voice for
those who need a strong voice on their behalf--working
families.
I am very, very personally appreciative of all of his
leadership as I am for our other colleague, Senator Brown, who
is an active member of this committee, and has a long history
of involvement in terms of worker and worker family issues.
My colleague and friend Dick Durbin, not a member of the
committee, but nonetheless, a very concerned, active, involved
friend on this issue. I thank them all, and particularly my
acting Chair today, Senator Sanders of Vermont.
A half a century ago, Edward R. Murrow and CBS broadcast a
documentary exposing the plight of migrant farmworkers in
Immokalee, FL. Airing shortly after Thanksgiving in 1960, ``A
Harvest of Shame'' told the story of a neglected and mistreated
class of Americans who worked long and back-breaking hours to
put food on the tables of families across the Nation. The story
shocked the conscience of the Nation and compelled us to speak
out against these abuses.
The appalling conditions of farmworkers moved my brother
President Kennedy and others to crack down on the abuses in the
infamous Bracero program and end a dark chapter in our Nation's
history. Later, when Robert Kennedy and I were both Members of
the Senate's Migratory Labor Committee, we met with a group of
migrant workers and saw their plight firsthand. Both of us were
very moved by their plight, inspired by their campaign for
justice and equality.
But too little has changed over the years. At today's
hearing, we will hear about the challenge that still exists for
migrant farmworkers in Immokalee, FL, and throughout the
Nation, and how far we have to go to provide genuine fairness
and justice for this vulnerable workforce. Farmworkers in
Immokalee and nationwide have some of the hardest jobs in
America. Yet they often toil for the lowest wages and under the
most dangerous conditions.
For the tomato workers in Immokalee, the pay they receive
hasn't changed in a decade. They head off into the fields
before the sun rises, and they are still working hard when the
sun sets. During the harvest, they work 10- to 12-hour days, 7
days a week with no overtime pay. They each pick as many as 2
tons of tomatoes per day, and they earn only $40 to $50 dollars
for this hard day's work.
Their work can disappear for weeks or months, leaving them
without the means to support their families. Their working
conditions are deplorable. But most of them are afraid to
demand fair treatment because they know they will be fired,
blacklisted, or turned over to immigration officials. These
conditions are not limited to Immokalee. They are widespread
and getting worse.
Today, we will hear from a courageous campaign to increase
the wages of tomato workers by a penny a pound. It may not
sound like much, but for the tomato pickers, it means the
difference between poverty and decent wages.
Several major companies, including Yum! Brands and
McDonald's, have already recognized the urgent need and reached
agreement with the coalition of Immokalee workers to pay an
additional penny a pound. They have also adopted a code of
conduct and agreed to have a third-party monitor whether the
workers are, in fact, receiving the higher wages.
I commend these companies for demonstrating strong
leadership on this issue. They understand that it is good
business to pay workers fairly even if the law doesn't require
it.
Shamefully, however, soon after the Immokalee workers began
receiving the extra pay, the Florida tomatoes exchange rose up
and threatened its members with $100,000 fines if they
continued to make the extra payment to the workers, citing
unspecified legal concerns. The growers exchange succeeded in
blocking these increases.
Twenty-six prominent law professors have told this
committee in a statement that any such concerns are unfounded.
Yet the growers continue to stand in the way of fair wages for
tomato workers. By meeting today, I hope we can ensure that the
Immokalee workers will receive an extra penny a pound that they
deserve. We will also explore other widespread problems that
the farmworkers have faced throughout America.
As Robert Kennedy said, ``We must help those who have not
been able to help themselves, whom society has not helped, whom
the Federal Government has not helped, whom not enough States
have helped. It is not only our responsibility in Government,
it is also the responsibility of people who are in management,
of those who are growers, and those who are employees and have
some leadership ability. All of us must try to do something to
rectify the situation, or it is never going to change.''
As I mentioned, I commend Senator Sanders, Senator Durbin,
Senator Brown for their leadership on this issue, and I
particularly thank Senator Sanders for urging the committee to
hold these hearings. I look forward to the testimony of our
witnesses.
Senator Sanders, Senator Durbin that are here, Senator
Brown, we want all to know that we are not letting up and
giving in. We are staying after this issue. We want all of
those, particularly the growers, to understand we are staying
after this.
Thank you very much.
Senator Sanders. Senator Kennedy, thank you very much.
Let me make a statement. Then I am going to introduce
Senator Durbin, who has been so active on this issue.
Today, we are a very long way away from Immokalee, FL, and
I remember visiting Immokalee mid-January. I think it was
January 19. I remember, and won't forget, being in the town
center, a large parking lot, where at 5:30 in the morning, it
appeared that hundreds and hundreds of workers assembled in
order to be determined whether or not they would be selected to
get on a bus and go to work.
Many of these workers were selected, got on a bus, and went
to the fields. Some of them were not selected, and we saw them
after the buses left, sitting there dejectedly, not earning any
income that day. That is one of the memories that I have, kind
of the helplessness of people who just were sitting there
without a day's pay.
In addition, I had the opportunity when I was in Immokalee
to talk to a number of the workers. I learned that they make
approximately 45 cents for every 32-pound bucket of tomatoes
they pick. That is about a penny and a half per pound. This
wage has not increased since 1998, and in fact, farmworker
wages in general, beyond the tomato industry, have actually
declined by about 65 percent in the last 30 years. So if it was
bad back then, when Edward R. Murrow wrote about it, it is
worse in many ways today after adjusting for inflation.
While I was in Immokalee, I also learned that while it is
possible under optimum conditions--and we are going to explore
this issue today--to make as much as $10 to $12 an hour, the
average hourly wage is far lower than that, and, in fact, when
you look at the income of the workers over a week or over a
year, you are looking at abysmally low wages. In fact, most
workers in the tomato fields earn about, as I understand it,
$250 a week in income.
I also learned, and this is an important issue, that there
is no overtime when workers work more than 8 hours a day or 40
hours a week. I also learned that there are no benefits. Now,
working in the tomato fields is dangerous work. You are out in
the hot sun. People get injuries. But to the best of my
knowledge, there are no healthcare benefits available to these
workers.
What I also observed when I was in Immokalee was just awful
housing conditions. What I saw were old trailers where some 8
to 10 workers were living, and they had to have so many people
in a trailer because it took that much money--and I believe it
was about $500 per person--to pay for the outrageously high
rental. What I will say as a former mayor, that in my city of
Burlington, VT, no housing like that would have been accepted
or would have been allowed to exist. That is certainly the
case. They are outrageous housing conditions.
Let me also quote at this moment from an editorial that
appeared in the St. Petersburg Times just a few days ago on
April 11. This is what this editorial said.
``Is it really going to take an act of Congress to
get Florida's tomato pickers a raise? The men and women
who work the fields in Immokalee earn 45 cents on
average for every 32-pound bucket of tomatoes
harvested. It is a meager wage that has not been raised
in more than 20 years. Yet when a couple of fast food
giants generously agreed to pay workers an added penny
per pound, the Florida Tomato Growers Exchange
sabotaged the deal and has refused to negotiate even
after congressional leaders offered to be
intermediaries.''
Then the editorial goes on to say,
``The truth is that Florida's migrant farm laborers
are among the worst-paid workers in the State. They
haven't had a piece-rate increase in a generation, and
the growers exchange wants to keep it that way even
when someone else is willing to foot the bill.''
That is not me. That is not Senator Kennedy. That is not
Senator Durbin. That is the St. Petersburg Times.
Thankfully, due to the dedication and hard work of a number
of people, including the Coalition of Immokalee Workers, the
conditions that exist in the Florida tomato fields have begun
to come to light.
I am very pleased that Lucas Benitez, a co-founder of the
coalition, could be with us today to shed even more light on
the subject. It is a direct result of the CIW's efforts to
large fast food companies McDonald's and Yum! Brands, whose
subsidiaries include Taco Bell, Pizza Hut, Kentucky Fried
Chicken, Long John Silver, and A&W, have agreed to supplement
the pay of these workers at a rate of an additional penny per
pound for the tomatoes they buy. McDonald's and Yum! are to be
commended for their commitment to help alleviate the despicable
situation in the Florida tomato fields.
Sadly, however, some other fast food companies, like Burger
King, continue to resist making a similar move, which, for a
minimal cost, could almost double the income of the Florida
tomato workers. In addition, the Florida Tomato Growers
Exchange has threatened fines of up to $100,000 for any grower
who cooperates in implementing the penny per pound agreement,
something that I simply cannot comprehend.
I have met with Mr. Brown, and we are going to hear from
him in a few minutes, with the Florida Tomato Growers Exchange,
about the subject, and we will pursue this. I am glad that he
is with us here today.
Unfortunately, this, as Senator Kennedy indicated, is not a
new problem. Edward R. Murrow talked about it in 1960, but not
much has changed in all of those years.
I would just want to say to all of my friends here, all of
us know that we live in a global economy. I think,
increasingly, all of us understand that when people eat food,
they are not only looking at the quality of the food, which is
important, they are not only wondering about where they get
their clothing from, they also want to know what are the
conditions that exist for the workers who produce the food, who
produce the sneakers, who produce the clothing?
People are becoming more and more conscious about that. In
my view, people are saying no to slavery, no to the kind of
exploitation of workers that we are now seeing from those who
are producing these tomatoes.
Last point that I would make--some may say, ``Well, this is
just a local Immokalee issue. It is a Florida issue.'' No, it
is not. In America today, we are seeing a race to the bottom.
The middle class, in many ways, is collapsing. Poverty is
increasing. What I saw in Immokalee is the bottom in the race
to the bottom. If we do not lift that bottom up, every worker
in this country is in danger.
So it is terribly important that we understand how, in the
year 2008, slavery can exist in Immokalee and how workers can
be treated as badly as they are. I very much appreciate all of
the panelists who are here today. I look forward to a wonderful
discussion.
Now let me introduce Senator Durbin, who has played such an
active role in this process.
Senator Durbin.
Statement of Senator Durbin
Senator Durbin. Thank you, Senator Sanders, for this
hearing.
Senator Kennedy, thank you for your leadership on this, and
Senator Brown as well.
This is an important hearing, and I thank all of the
witnesses who are here. I want to thank especially Mr.
Schlosser for his article in the New York Times, which brought
this issue to my attention.
Mr. Schlosser. Thank you.
Senator Durbin. I wasn't sensitized to it. I didn't know
what was going on. But thank goodness for your efforts in
educating me and a lot of Americans about what we face.
As Senator Sanders said, this is not a new issue. It is an
issue that has been around for decades. Edward R. Murrow, the
legendary CBS analyst, really alerted America to this harvest
of shame decades ago. Many things have changed since Edward R.
Murrow's portrayal of this situation, but many things have not.
Florida's migrant farmworkers still live in shantytowns and
earn basically the same wages that they earned decades ago.
They lack labor protection, the same labor protections that
they needed 50 years ago. Our society continues to depend on
them to perform tough jobs.
You will find during the course of this testimony that some
of our witnesses here will need interpreters and translators to
be with them. They have come from other countries to do work
which Americans will not do, cannot do, certainly wouldn't even
consider doing for the amount of money that they are being
paid.
This is a reality that we should face in America, and we
have to ask some hard questions. It isn't just a matter of fair
trade coffee at your local Starbucks. We are conscious and
sensitive of that. It is a matter of whether that tomato on
your hamburger or the tomatoes chopped up on your taco really
come from a fair situation where the workers are being treated
and paid fairly for what they do.
This is a photo of the Immokalee worker--and I want to call
attention to it because Mr. Brown, who came to my office and
met with Senator Sanders and I, told us that these workers are
paid about $12 an hour. Please join with me in doing the basic
math. What that worker is carrying is 32 pounds of tomatoes,
roughly 100 tomatoes. For that bucket of tomatoes, that worker
is paid 45 cents--40 to 45 cents.
Just show the next one, please. It isn't just a matter of
picking them. That worker then has to take--if you will turn to
the one with the truck, please? That worker has to carry the
tomatoes, once picked, to the truck to be off-loaded before he
returns to pick another bucket of tomatoes. Remember, 45 cents
for 100 tomatoes.
Mr. Brown is going to tell you these workers make $12 an
hour. Please join me in doing the math. How many tomatoes do
you have to pick in 1 hour under those conditions to make $12?
Almost 3,000 tomatoes. You have to fill that bucket and empty
that bucket every 2 minutes, every 2 minutes. Is that
physically possible? I don't think it is.
Listen to what Senator Sanders says about the workday for
these people. Many of them don't know if they will get to work
at all. Then when they come to the fields, they may have to
wait an hour or more for the dew to come off the tomatoes
before they can be safely picked and transported. So to suggest
that these people are making dramatically more, maybe double
the minimum wage in America is beyond any credible belief. That
is what we are faced with here.
Companies of conscience, Yum! and McDonald's, came forward
and said these workers deserve more. We will pay more. We won't
ask the growers to pay it. We will pay it. McDonald's will pay
it. Yum! will pay it for Taco Bell and the other companies that
they manage. They came forward in what I think is a sensible,
sensitive response to what is a shameful situation, a penny a
pound. It meant that that bucket might no longer be worth 45
cents. It might be worth 75 cents, a dramatic change in wages
for that poor worker.
Look at the conditions these workers live in. Show, if you
will, David. This is the inside of one of the trailers that
they live in. You can see the conditions. I don't have to say
much about that. Now take a look at the outside of the
trailers. As Senator Sanders said, basic migrant workers living
in pretty rundown conditions. That is fact.
So what did the Florida tomato growers say when these
companies of conscience came forward and said we will give you
an extra penny a pound out of our bottom line? Not only ``no,''
they said, ``we will fine you $100,000 if you dare pay them an
extra penny a pound.'' That is why we are here. That is why we
are here.
I don't understand it. We have met with Mr. Brown. I am
glad he came. I appreciate his being here today. But I think
the Florida tomato growers ought to step back and take a hard
look at the position they are in today and many of the
consumers of tomatoes are in today, and I think it gets to a
very basic bottom line.
If Florida tomato growers can't live with workers being
paid a penny a pound more, then I can live without tomatoes
from Florida on my hamburger. I think most Americans will say
the same. We can get by with it, if that is what it takes that
people working in the United States will be treated humanely
and decently, that we can consume the products grown in this
country with a clear conscience. That is what this hearing is
all about.
Thank you.
[Applause.]
Senator Sanders. Thank you, Senator Durbin.
Senator Sherrod Brown of Ohio has long been a spokesman for
American workers.
Senator Brown.
Statement of Senator Brown
Senator Brown. Thank you, Mr. Chairman.
Senator Durbin, thank you for always standing up, and
Senator Kennedy, on the right causes and issues.
Mr. Schlosser, nice to see you and thank you for teaching
us so much about workers all over our country and the world and
how you have brought these issues forward.
There is not much more to say from what Senators Durbin and
Kennedy and Sanders said. But I want to tell a little story
because I think these issues are human rights issues, whether
it is Tibet, whether it is murder of labor activists in
Colombia, whether it is the way that workers are treated in
this country.
About 2 years ago, my cousin, through her church, was
working in a homeless shelter near Cleveland. She met a woman
who was living there, who was in the homeless shelter, who was
a full-time worker at the Cleveland airport. This woman and her
co-workers had one of two jobs. They either pushed the
wheelchair carts up and down the aisles there at the airport in
the concourses, or they ran those little electric carts that
they drove.
These workers were paid less than minimum wage, but they
were supposed to get up to minimum wage and beyond by tips,
which many didn't get much in tips because most people don't
know these people. They figure they work for the airlines.
These workers, none of these workers work for the airlines.
They were subcontracted through some private group, and the
airlines, of course, don't know how much these workers are
paid.
But, so many people in our society now have--and I know
this isn't exactly about the Immokalee workers. But so many
workers in our society now work in very, very prestigious
corporations, where the companies pay generally good benefits,
but these workers are subcontracted. They are cafeteria
workers. They are pushcart workers at the airport. They are
people that clean hotels. They are people that are security
guards at television stations.
None of these businesses would want to stand the public
heat of paying their own employees those kinds of sub-minimum
wages, in some cases, with no benefits, no healthcare, no
retirement. But they subcontract more and more of these. We are
seeing this whole class of people in this country that are
invisible, that are paid way less than a living wage, that
companies kind of wash their hands of and most of us are
unaware of.
I think that this hearing, coupled with the work that so
many of you on this panel and so many of you in this room are
doing to raise the visibility of workers that are ignored in
this society, is so very, very important.
So, thank you for that.
Senator Sanders. Thank you, Senator Brown.
Let me now introduce all of the panelists, and then we are
going to go back and start with Mr. Benitez.
Lucas Benitez is a former tomato worker, and he is co-
founder of the Coalition of Immokalee Workers in Immokalee, FL.
We thank him for being here.
Charlie Frost is a detective with the Collier County Anti-
Trafficking Unit in Naples, FL. I had the opportunity to meet
him when I was down there, and thank you very much, Detective
Frost, for being with us.
Eric Schlosser, as we have heard, is one of the outstanding
writers in America. His book ``Fast Food Nation'' was a
bestseller and opened up many vistas, I think, to people
understanding what the agricultural economy is about. He is
from Monterey, CA. We thank Mr. Schlosser for being here.
Mary Bauer is the Director, Immigrant Justice Project of
the Southern Poverty Law Center in Montgomery, AL, and we thank
you very much for being here.
Reggie Brown is the Executive Vice President of the Florida
Tomato Growers Exchange in Maitland, FL, and we thank you very
much for being here.
And Roy Reyna is a farm manager in Immokalee, FL. Mr.
Reyna, we thank you very much for being here as well.
Let us begin the testimony with Mr. Benitez, and what I
would appreciate is if the panelists could take 5 minutes of
time. Then if you have a longer statement, please enter it into
the record. Any size statement is fine, but keep your verbal
comments to 5 minutes, please.
The Chairman. Could I just add its a special pleasure to
have Mr. Benitez here. He was an award recipient of the Robert
Kennedy Human Rights Award in 2003, as well as many national
and other international awards. We have a very distinguished
panel, but we have a very courageous spokesman for workers as
well on this panel. We thank him.
Senator Sanders. Thank you, Mr. Kennedy.
Also I should mention that Julia Perkins is going to be Mr.
Benitez's translator. Mr. Benitez, the floor is yours.
STATEMENT OF LUCAS BENITEZ, FORMER TOMATO WORKER AND CO-
FOUNDER, COALITION OF IMMOKALEE WORKERS, IMMOKALEE, FL
Mr. Benitez [Interpreted by Julia Perkins]. Buenos dias.
Good morning. It is a tremendous honor to be here today,
testifying in front of this committee in such a storied
institution as the U.S. Senate. I thank you for this once in a
lifetime opportunity.
At the same time, of course, the reason I am here today is
very troubling. The sad fact is that we are here today because
there is slavery in the fields in the United States in the 21st
century.
Exactly 200 years ago, in an act now mostly forgotten in
the pages of history, the Congress of the United States voted
to end the importation of slaves into this country. Two hundred
years ago, the opponents of that law argued that slaves were
happy with their lot, that they were certainly better off here
than where they came from, and that agriculture in this country
would surely collapse if that law were to pass.
Two hundred years ago, the choice before Congress seemed
very complicated and controversial. But in the end, they voted
in favor of human rights and advanced the cause of human
dignity. Today, 200 years later, I sit before you representing
the Campaign for Fair Food, a campaign with the objective of
eliminating modern-day slavery and sweatshop conditions in the
fields of Florida.
I work with the Coalition of Immokalee Workers. Our members
pick tomatoes and oranges during 8 or 9 months of the year and
then follow the crops up the East Coast during the summer. I
came to this country from Mexico at the age of 17, and I began
to work in the picking of oranges and tomatoes.
The job of picking tomatoes is hard and heavy, dirty and
dangerous. You run all day long under a burning sun with a 32-
pound bucket on your shoulder, carrying it from the row where
you are picking to the truck where you dump it out and back,
and that is when you aren't stooped over to pick tomatoes. At
the end of the day, the cramps don't even allow you to sleep.
Not only is your body exhausted, but so is your spirit after
having to put up with the yelling of your supervisors all day
long.
One day, my own experience, I was working, staking
tomatoes, and I got ahead of the rest of the crew. When I
stopped for a moment to catch my breath, the boss yelled at me,
got down from his truck, and threatened to beat me up if I
didn't continue to work immediately. I was alone in the middle
of hundreds of acres of fields, miles from any town, and one of
the reasons for our organizing the coalition was so that no one
would ever have to feel that alone again.
For women who work in the fields, in addition to putting up
with all of this, they have to also endure an environment that
is charged with sexual harassment. All of this that you hear
about right now is what happens to workers who are working free
and not those who are working under forced labor. That is a
completely different situation.
Others here will speak more in detail about modern-day
slavery. But I assure you that the seven cases of modern-day
slavery that have been uncovered in the fields of Florida are
just the tip of the iceberg. Countless more workers have
suffered the humiliation of beatings, rapes, wage theft by
their bosses over the past 10 years. Today, we are
investigating more of those cases that haven't been to courts
yet.
Truly my job here today, to paint a picture for you of the
life of a farmworker, is almost impossible. It is so difficult
because for years farmwork has been the exclusive domain of
such a small and marginalized portion of the overall U.S.
population that the vast majority of Americans for several
generations now have no context in which to understand the
reality of the work that we do.
The growers know this well. That is how they have been able
to make the clear seem complicated and the obvious so
controversial. Take the issue of wages, for example.
Incredibly, even this issue that farmworkers are poor has been
made complicated with the growers' statements that farmworkers
earn an average of $12.46 an hour.
To dispute that, I could cite reports from the U.S.
Department of Labor, an objective source that confirms the
obvious--that farmworkers are the poorest and least-protected
workers in this country. Or I could cite the opinion of a
respected voice in the agriculture industry. He is the editor
of Produce Business magazine, which says that growers' public
relations strategy of focusing on an hourly wage can never
cover up the fact that farmwork is a full-time job with
irregular hours with which a worker will never be able to get
his family out of poverty.
But these arguments are just more words. I want to make
this issue as clear as possible. So I say to you today, fine,
we will take it. If Mr. Brown can guarantee that $12.46 an
hour, backed up by a verifiable system of hours with time
clocks in the fields and thereby eliminate the antiquated
system of work by the piece, then we will take it. If they
already say that they pay $12.46 an hour, there should be no
problem with actually paying that wage.
However, unfortunately, I don't think I have to be a
fortune teller to know what the response will be. If we really
want to put an end to this eternal debate about farmworkers'
wages, it is simple. The tomato industry can simply implement a
surcharge in the same way they have done three other times in
the last few years to cover other production costs, like diesel
and pesticides.
Just like the other surcharges, there will be no impact on
the market. But in this case, the money won't go to Exxon or to
Monsanto, but will go directly to the families of the
farmworkers--or the workers of the poorest workers in this
country.
To close, I want to tell you another story from our past.
In 1997, after a 30-day hunger strike by six of our members, a
friend of ours asked one of the growers why they weren't
willing to sit down and talk with us. The grower answered,
``Let me put it to you like this. The tractor doesn't tell the
farmer how to run his farm.'' That is how they have always seen
us, just another tool and nothing more.
But we aren't alone anymore. Today, there are millions of
consumers with us, willing to use their buying power to
eliminate the exploitation behind the food they buy, and a new
dawn for social responsibility in the agricultural industry is
on its way. With the help of Congress and with the faith that
the complicated will be made clear under the purifying light of
human rights, today, just as it was 200 years ago, we will
witness the dawn of that new day.
Thank you, Senator Kennedy, Senator Sanders, Senator Brown,
Senator Durbin, and thank you to all who are here listening to
us today.
[The prepared statement of Mr. Benitez follows:]
Prepared Statement of Lucas Benitez
Good morning. It's a tremendous honor to be here today testifying
in front of this committee in such a storied institution as the U.S.
Senate. I must say, my parents never could have dreamed I would be
sitting at this table in this place, and I thank you for this once in a
lifetime opportunity. At the same time, of course, the reason I am here
is very troubling. The sad fact is that we are here today because there
is slavery in the fields in the United States in the 21st century.
Exactly 200 years ago, near this very spot, men in your position
voted to outlaw the importation of slaves into the United States. That
little known act did not end slavery, but it was an important step
toward the eventual abolition of that brutal institution.
At the time, moving to ban the slave trade was a complex,
controversial and courageous decision. Those who supported the status
quo argued that most slaves were happy with their lot, that they were
certainly better off than where they came from, and that the economic
collapse of U.S. agriculture would surely follow. Fortunately, the
moral arguments of a growing movement of abolitionists--an alliance of
consumers with slaves and former slaves--prevailed. Indeed, their
campaign launched what is today the modern human rights movement.
Two hundred years later, time has stripped away the complexity and
controversy surrounding the Act to Prohibit the Importation of Slaves,
leaving only the now-
obvious moral correctness of Congress' decision to protect and further
human dignity.
Two hundred years later, I sit before you representing a new
movement for fundamental human rights in this country's agricultural
industry--the Campaign for Fair Food. Our campaign is a growing
alliance of farmworkers and consumers calling for an end to modern day
slavery and sweatshop conditions in Florida's fields. And like the
original abolitionists, we come to you today in the hope that our
Congress will once again help advance the cause of dignity and human
rights in this country's fields.
The organization I helped found, the Coalition of Immokalee
Workers, is spearheading the Campaign for Fair Food. The CIW is a
membership organization made up largely of migrant farmworkers, with
over 4,000 members in Immokalee and around the country. Our town,
Immokalee, is really more of a labor reserve than a traditional
community. It is the largest farmworker community in Florida and
provides labor for the heart of the State's fruit and vegetable
industry. Our members pick tomatoes and oranges 9 months of the year in
Florida, and then follow the crops up the East Coast, as far as New
York, during the summer harvest.
I myself immigrated to work in U.S. fields at the age of 17. I am
the second of six children of Mexican peasants from the highlands of
Guerrero. I came to the United States as a teenager with the hopes that
through my work in this country I could support my parents and
siblings. In 1994, I was picking oranges and tomatoes in Immokalee when
I noticed an invitation taped to a wall in town and began participating
in evening meetings with a handful of other workers after our long days
of work. Our small group gathered in a room borrowed from the Our Lady
of Guadalupe Catholic church to discuss the extreme poverty and brutal
mistreatment we shared in common in the hope that, by working together,
we could improve our community and our working conditions.
One day during that time, when I was hammering the stakes to which
tomato plants are tied in the fields, one of the bosses started yelling
at me, got down from his truck, and threatened to beat me up. He
thought I was not working hard enough, when in fact I had gotten ahead
of the other workers and was merely catching my breath while they
caught up to me. There, in the middle of hundreds of acres of fields,
miles from any town, I faced my boss's threats alone. None of the other
workers, crippled by the overwhelming climate of fear in the fields,
dared stand up to him. Holding a tomato stake in my hand, I managed to
face him down that day, but I was lucky. The new group that I was
meeting with in the evenings wanted to make sure no one would ever feel
that alone again in the fields.
Today, nearly 15 years later, that small group has become a
nationally respected leader in the fight to end farmworker
exploitation.
ciw anti-slavery efforts
We did not set out to be an anti-slavery organization. In the
summer of 1992, however, while CIW members were visiting a labor camp
in South Carolina, they encountered a young woman, Julia Gabriel, and
her friends who explained that they had fled another labor camp on an
isolated farm after a worker there had been shot for wanting to leave.
Over time, others from her crew told of 12-hour workdays and 7-day work
weeks, of being awaken at dawn by gunshots instead of alarm clocks, of
a young man who was beaten for telling other workers that forced labor
was illegal in the United States, of women sexually assaulted by the
crew bosses, and of earning no more than $20 a week in wages, once
``deductions'' for transport to the job, rent, food, and so forth were
taken out. More than 400 workers suffered this plight.
After 5 years of the CIW investigating and pressuring the
Government to act, the young woman who escaped saw her captors
sentenced to 15 years in Federal prison. Her employers were prosecuted
on slavery, extortion, and firearms charges, using the same laws passed
just after the U.S. Civil War prohibiting peonage. Julia Gabriel is now
a CIW member and winner of the Robert F. Kennedy Human Rights Award for
her ongoing activism
But was that case perhaps an anomaly? Was it just ``one bad
apple,'' as one agricultural industry lobbyist put it when pressed by a
journalist 10 years ago? Certainly no one in the agricultural industry
or the corporations that bought the produce Ms. Gabriel and her
colleagues picked spoke out after the sentencing. Their response was a
deafening silence. There were no outraged calls for reform, no
contracts cut--the vegetables kept flowing to the market without so
much as a hiccup.
But then our members uncovered another operation, this time just
outside of Immokalee. That operation was prosecuted on slavery charges
in 2000. Two bosses were ultimately convicted for holding dozens of
workers in a trailer deep in the swamp of Southwest Florida and forcing
them to pick tomatoes for virtually no pay. The manager of the farm
where they worked--Manley Farms--said he had no idea whatsoever that
the workers were being held against their will.
After that case, another. Late one night, we received a call from
my brother, who worked for a taxi-van service catering to migrant
farmworkers. ``I called 911 emergency''--he said--``we are being
attacked by men with guns! They look like bosses!''
We immediately drove an hour north to Lake Placid, to find a scene
of blood, broken glass, and terrified workers at a store on the side of
the highway. This time, the passenger vans had made a scheduled stop to
pick up workers wanting to leave Lake Placid to go elsewhere--but the
armed gunmen, crew bosses, didn't want their workers to be free to
leave. So they held up the passengers at gunpoint, beat the van
drivers, and pistol-whipped the owner of the van service, splitting his
head open and leaving him unconscious, saying, ``You're the SOB's who
are stealing our workers!'' During the years-long investigation of
those bosses, we had to help terrified workers escape the camp. Those
workers later testified in Federal court, and again, the crew bosses
received 15-year sentences on slavery and firearms charges.
In all of these cases we are speaking of modern-day slavery, in the
form of debt bondage, different of course from the legally sanctioned
chattel slavery of the plantation era. Workers caught in this brutal
trap soon learn they cannot leave until they pay off their debt.
Employers enforce this system of servitude through violence or threats
of violence, their power imposed in many cases by armed guards through
beatings, shootings, and threats of death to families back home.
When we use the term slavery we confine it to operations that have
met the high standard of proof necessary to prosecute under Federal
law--anti-slavery laws based on the 13th Amendment of the U.S.
Constitution and a new law enacted in 2001, The Trafficking Victims
Protection Act (TVPA). The TVPA is designed to guarantee that victims'
human rights are respected. In fact, the first case I spoke of,
involving Julia, was one of the seminal cases leading to the drafting
of the new law.
It is important to understand that, while the cases I've mentioned
here involve immigrants, that is only because the workforce as a whole
in Florida is today mostly immigrant. But forced labor pre-dated the
relatively recent arrival of immigrant workers in Florida's fields.
Thirty years ago, when the farm labor force was mostly U.S. citizens, a
significant percentage of the workers were also held in forced labor.
Citizenship is not the key factor--the drastic imbalance of power
between workers and employers is. These brutal conditions have existed
virtually unchanged for many, many decades, independent of the changing
status of the workers who toil in our fields.
In fact, our most recent prosecuted case involved an employer
working a crew in fields in the small rural town of Palatka, FL. That
boss received 30 years in jail for what the Department of Justice
called the ``worst form of servitude.'' His wife received 15 years and
his son 10 years. They recruited homeless U.S. citizens, mostly
African-American, from homeless shelters, with promises of a roof over
their heads and a good job. The workers found themselves locked in debt
in isolated rural labor camps in Florida and the Carolinas, in fear and
penniless. It's a chilling illustration of how fragile human rights
truly are, and how they constantly need defending and expanding.
This too is important to keep firmly in mind: the investigative
work we do is vital, but it is cleaning up an abuse after it has
already happened, that is, when it's already too late. Here we have
workers who've escaped describe the experience as, ``I feel I came out
of the darkness into the light,'' or ``I came from death back to
life.'' It is outrageous that anyone has to go through that in this day
and age, or that we even have to have an Anti-Slavery Campaign at all.
But there is a way to prevent this from happening in the first place.
ciw campaign for fair food
Eliminating existing slavery operations, while absolutely
imperative, is nonetheless treating the symptom, not curing the
disease. So while we of course will continue to investigate and help
prosecute slavery cases as they arise, we must cure the disease, and
prevent modern-day slavery from taking root in the first place. To do
so, we are working together with consumers--in the tradition of the
abolitionist movement--as allies. As allies fighting together in our
Campaign for Fair Food, we have arrived today at the threshold of a
more modern, more humane agricultural industry. But before I explain
where that campaign stands at this moment, I'd first like to describe a
bit of the road that has brought us to where we are.
Workers in Immokalee endure terrible exploitation--and I speak here
of the majority of farmworkers, those who are free, not held in forced
labor. In the agricultural industry, ``sweatshop'' conditions prevail,
what we call ``sweatshops in the fields.'' The conditions are similar
to those in factories at the turn of the 20th century in the United
States--subpoverty wages, no benefits (that is, no health insurance, no
sick leave, no pensions), no right to overtime pay, and no right to
organize.
Like sweatshop workers a century ago, workers who pick tomatoes
today are paid not by the hour but by an antiquated piece rate system--
at an average rate of 45 cents a bucket--a rate which has not risen
significantly in 30 years. But unlike a factory, there is no roof over
your head. Rather you work--half the day bent-over, half the day
running from your row to the truck and back--all day under the broiling
sun. You're constantly on the move, looking for jobs from farm to farm,
State to State. You live in trailers or shacks, 10-12 men per trailer,
with exorbitant rents that can only be met by extreme overcrowding.
Most workers have no cars, no phones in homes, no heat, no air-
conditioning (in Florida!), none of the amenities taken for granted in
the United States.
We began organizing against this grim reality as a few dozen
workers, and held a general strike of 3,000 workers in 1995, beating
back a wage cut. In 1997, six CIW members organized a 30-day hunger
strike, their only demand: dialogue with the growers. Christmas passed,
and then New Year's. A striker went to the hospital, and still no word.
The growers' resistance was not so much economic but rather based on a
refusal to shift how they view their workers. They had a deep-rooted
aversion to seeing workers as employees instead of as peons or, worse
still, machine parts. Back then, a friendly businessman told us of how
he asked one of the growers, ``Why don't you all go down to Immokalee
and simply talk to the workers? '' The grower responded, ``Because a
tractor doesn't tell the farmer how to run the farm.''
In the following years we organized two more general strikes and a
240-mile march across Florida, and though our strikes brought about the
first raises in 20 years, it grew increasingly clear that systemic
change was not going to come from confronting the growers. In response
to our pressure, growers claimed that they were caught in a ``cost-
price squeeze'' with pressure from their buyers for ever-lower prices
leaving them unable to raise wages.
Corporate buyers from the fast-food industry do indeed pool the
purchasing power of tens of thousands of restaurants to demand the
lowest possible prices for their produce. That downward pressure on
prices at the farm gate is translated directly into downward pressure
on farmworker wages in the fields, and so in this way the major buyers
of Florida produce are in fact a driving force behind the increasing
misery of our members. Fast-food profits from farmworker poverty.
As we came to realize this, we also came to realize that if fast-
food giants can wield buying power to depress wages and working
conditions, they can also use that power to demand fairer conditions
and help improve wages. The same mechanism that draws profits to the
top of the food industry can be reversed to return a tiny part of those
profits back down the supply chain to those who have been impoverished
for so long at the bottom of that industry.
And so the Campaign for Fair Food was born.
We began our campaign after finding out that Taco Bell, a major
fast-food chain in the United States, bought its tomatoes from a major
grower based in Immokalee. A year after first contacting Taco Bell and
receiving no response, we launched a national boycott campaign. With
the growing support of students, religious, and labor allies across the
country, we were able to win that boycott after 4 years, establishing
three key precedents for fair labor standards in agriculture:
a penny more per pound to be passed directly on to the
workers
a supplier code of conduct establishing fundamental human
rights in the field, including the first enforceable zero tolerance
policy against slavery and certain other abuses
a guaranteed role for workers in drafting, enforcing, and
monitoring the code in the fields.
Starting in March 2005, workers harvesting for Taco Bell began
receiving a check from Yum! Brands for the additional penny-per-pound
of tomatoes harvested. For two seasons, workers received two checks at
pay time, one from their employer and a second from Taco Bell for the
bonus.
We then turned to McDonald's, and 2 years later, came to an
agreement that expanded upon the Taco Bell agreement, involving the
development of an industry-wide supplier code of conduct and a third-
party monitoring system, with worker participation in its
implementation.
Soon after, Taco Bell's parent company, Yum! Brands--owner as well
of Pizza Hut, KFC, and others--extended the agreement to cover all of
its five brands.
So with the leadership from both the world's largest restaurant
system (Yum! Brands) and the world's largest restaurant chain
(McDonald's), the road to systemic change was laid out, and a
functioning, workable model was in place. Other corporations serious
about social responsibility now needed only to agree to participate and
dramatically improve the lives of the farmworkers picking the tomatoes
that end up in burgers and sandwiches.
As the current season began last fall, we stood on the threshold of
a more humane agricultural industry in Florida--until the tomato
growers' lobby, the Florida Tomato Growers Exchange, stepped in the
way. The FTGE imposed a $100,000 fine for any of its members that would
participate in the Yum! or McDonald's agreements, and as a result, the
penny per pound payments to workers that began in 2005 have been
temporarily halted.
The other Yum! companies were due to initiate the penny-per-pound
payment in the fall of 2007 as a result of a voluntary agreement by
Yum! Brands. The McDonald's agreement was also due to begin with the
fall 2007 picking season.
Today, however, both agreements are being held hostage by the
resistance posed by the FTGE. It is important to emphasize that both
Yum! Brands and McDonalds remain firmly committed to the agreements and
continue to pay the penny per pound into escrow accounts.
But it is equally important to understand that already poor workers
have seen their income cut as a result of the threatened fine.
The FTGE's threatened fine cannot keep us from continuing to build
an historic alliance of workers and consumers for slavery-free,
exploitation-free food, however. That alliance is key to bringing an
end to the sweatshop conditions that allow slavery to persist, through
moving more and more corporations to take responsibility for abuses in
their supply chains. The movement is growing. Consumers don't want to
partake in the exploitation of farmworkers through their food
purchases, farmworkers understand the dynamics that underlie their
poverty, and social responsibility in the U.S. food industry is
inevitable. It is today not a question of if U.S. agriculture will have
to face up to this fact, but when.
what are the solutions to the current abusive conditions in the fields?
I want to put this plainly, farmwork is not like any other job.
Farmwork is a full-time job with irregular hours. Some weeks you'll
work overtime. Some weeks you'll work part-time. Some weeks you won't
work at all. But you have to be available every day, or you won't have
a job. In the vast majority of picking jobs, you get paid for what you
pick, not for the hours you work.
That's why farmworkers are poor. If we want farmwork--one of the
hottest, most difficult, most dangerous jobs this country has to
offer--to be less degrading and more dignified, if we want it to be
stable employment, then we have to raise the pay workers earn when they
are working, because they only get paid when they are working. That
means a raise to the piece rate is essential, although it is not all
that should be required.
1. The first, best way to raise the now-stagnant piece rate paid to
tomato pickers is for the Florida Tomato Growers Exchange to impose an
industry-wide surcharge of one penny per pound of tomatoes to cover the
increased cost of labor, just as it has done three times in the last 10
years to account for other production inputs, such as the cost of
chemicals, fuel and palletization.
2. In the absence of an industry-wide surcharge, Congress should
insure that the FTGE is required to eliminate its threat to fine, or
otherwise retaliate against, willing growers who agree to participate
in the agreements like those that the CIW has reached with Yum! Brands
and McDonald's. Those agreements represent a pure market solution to an
intractable situation that has resisted progress for over 100 years.
Without artificial and coercive intervention by what is essentially a
tomato cartel, this market solution will indeed succeed in bringing
needed change to the agricultural workplace.
3. Congress should also mandate the development and implementation
of an accurate time record system, specifically including time clocks
(as is the case in factories), designed in such a way as to allow the
workers themselves to determine and demonstrate whether they are
getting credit for all the time they actually spend in the fields.
4. Congress should eliminate the farmworker exemption from the
overtime requirement of the Fair Labor Standards Act.
5. Congress should require the development of a multi-employer
system for providing health and other common employee benefits to
farmworkers, so that the benefits are available as those workers move
from job to job and employer to employer within the agricultural
industry.
6. Congress should examine other ways to protect farmworkers'
fundamental human rights, including but not limited to a right to
organize without fear of retaliation, taking into account the unique
hurdles faced by farmworkers who might seek to exercise those rights.
Senator Sanders. Thank you very much, Mr. Benitez.
Charlie Frost is a detective with the Collier County Anti-
Trafficking Unit in Naples, FL. Mr. Frost, thanks very much for
being with us.
STATEMENT OF CHARLIE FROST, DETECTIVE, COLLIER COUNTY ANTI-
TRAFFICKING UNIT, NAPLES, FL
Mr. Frost. Thank you, Chairman Kennedy, Senator Sanders,
and other distinguished members of this committee, for granting
me the privilege to speak to this committee today.
On behalf of the Sheriff 's Office of Collier County, I am
honored to speak to this committee about my experience in
investigating human trafficking and how this crime against the
fundamental human rights impacts workers in the agricultural
field. Prior to the inception of the Trafficking Victims
Protection Act of 2000, the Sheriff 's Office had been involved
in some human trafficking investigations.
In December 2004 through a grant from the Bureau of Justice
Administration, we began with a full-time investigator and
full-time victim advocate. In the beginning of 2006, I became
the investigator for the human trafficking unit. Since then, I
have worked with the U.S. Attorneys Office, the Civil Rights
Unit of the Department of Justice, special agents from ICE,
FBI, and other State and local law enforcement agencies to
ensure the prosecution of perpetrators of human trafficking
offenses.
In addition, we collaborate with nongovernmental
organizations, such as the Coalition of Immokalee Workers and
the Florida Freedom Network, to provide assistance to the
victims. One aspect of my duties is to provide education on the
subject of human trafficking to law enforcement agencies,
community service providers, and civic groups throughout the
area.
When I first began, there was one common occurrence that
tied these all together. Most people were unaware that human
trafficking, which is nothing more than another moniker for
slavery, was occurring today. Today's form of slavery does not
bear the overt nature of pre-Civil War slavery, but it is
nonetheless as heinous and reprehensible than the slavery of
our Nation's past.
Today, human trafficking has surreptitiously found its way
into our society and continues to thrive even as I speak to
this committee today. As I mentioned earlier, human trafficking
is nothing less than modern-day slavery. It is the recruitment,
harboring, transporting, and obtaining of a person for labor or
services through force, fraud, or coercion, involuntary
servitude, peonage, and debt bondage.
Through interviews with victims, I have gained knowledge of
how traffickers accomplish control of their victims. They use
threats and actual violence to enforce their will upon them.
Victims have been beaten or have witnessed beatings of other
workers who will not relinquish their earnings, disobey the
traffickers, or have left the camp and been found or have
attempted to escape. Traffickers create an environment of fear
meant to control and isolate victims.
Another method is perpetually accruing debt. Victims have
incurred debts for housing, food, water, and transportation. In
one instance, victims have related to me if they were unable to
work for 1 day, then they would be charged 3 days' worth of
labor. After a full week of picking tomatoes, they may expect
to receive only $20 at the end of the week.
Traffickers use threats against the victim's family in
their home country to control victims. In one instance, the
victim ran away. The trafficker's family went to the victim's
family. They told the family that, ``If he doesn't return, we
will kill you. Next time you talk to him, you tell him that.''
When the victim called home, he returned to the camp.
In another instance, I had a prosecution that was ready to
go. The victims called their family, told them what was going
to happen, and they asked them not to cooperate with us. When I
asked them why not, they said that they were fearful for their
lives. The family was fearful for their lives. I asked them
what that meant. They said, ``Well, the traffickers are the law
of the village. They have the guns. They make the laws.''
These are only a few examples of what I have learned during
my investigations. Traffickers employ these and several other
methods to exploit victims for the trafficker's own personal
financial gain. The bottom line is the trafficker is profiting
from the suffering of other human beings to satisfy their
greed. Traffickers cultivate this environment of fear to their
own benefit, and because of the fear, few people are willing to
identify themselves as victims.
The State of Florida has been the venue of several cases of
human trafficking over the past decade. During this time,
several cases have been brought against traffickers who have
forced their victims to work in the agricultural fields of
Florida. One common denominator throughout all of this is that
traffickers are usually subcontractors of large corporations,
larger businesses. The system allows the larger corporation to
remain willfully blind of any abuses occurring and minimizes
any liability. In turn, both the trafficker and the business
profit from the work of the enslaved victim.
Currently, actual knowledge is the standard of proof
required to find a business culpable of human trafficking
offenses. Short of a change to State and Federal law, both the
corporations and traffickers will be able to continue to profit
from this system.
Since 1997 until now, including investigations I am
currently involved with, human trafficking and slavery is
occurring in the agricultural fields of Florida. Because this
work is migratory, slavery is not just affecting Florida, but
other States as well, where workers are transported to pick in
the fields of other States. In addition, this atrocity has
affected United States citizens who were enslaved in Florida in
the cases of U.S. v. Evans and U.S. v. Lee, where U.S. citizens
were held and forced to work in agricultural fields.
One public misperception is that a person needs to be
transported into this country to be a victim. This couldn't be
any further from the truth, and crossing borders is not
required. Knowing that this is occurring not just in the State
of Florida, but across this Nation, it is egregious that any
entity should deny the existence of human trafficking. This
arrogance, willful blindness, and lack of social responsibility
offends our basic rights guaranteed by this Nation's
Constitution.
Once again, I would like to thank Chairman Kennedy and the
Senators of this committee.
[The prepared statement of Mr. Frost follows:]
Prepared Statement of Charlie Frost
Thank you, Chairman Kennedy, Ranking Member Enzi, Senator Sanders
and other distinguished committee members, for granting me the
privilege of speaking to this committee today. On behalf of Sheriff
Hunter of the Collier County Sheriff 's Office, I am honored to speak
to this committee about my experiences in investigating human
trafficking and how this crime against fundamental human rights impacts
victims working in the agricultural fields. Prior to the inception of
the Trafficking Victims Protection Act of 2000 (TVPA) the Collier
Sheriff 's Office had been involved in some investigations of human
trafficking, but in December 2004 through a grant from the Bureau of
Justice Administration the Collier Sheriff 's Office dedicated a full-
time investigator and victim advocate to combat human trafficking and
assist victims in Collier County. In the beginning of 2006, I became
the investigator for the human trafficking unit. Since then, I have
worked with prosecutors from the U.S. Attorneys Office, and Department
of Justice's Civil Rights Unit, Special Agents from the Federal Bureau
of Investigations (FBI), and the Department of Homeland Security
Immigrations and Customs Enforcement (ICE), and State and local law
enforcement agencies to ensure the prosecution of the perpetrators of
human trafficking offenses. In addition, I have collaborated with
members of non-governmental organizations such as, The Coalition of
Immokalee Workers, and the Florida Freedom Network to provide
assistance to victims of human trafficking.
One aspect of my duties is to provide education on the subject of
human trafficking to law enforcement agencies, community service
providers and civic groups throughout the area. When I first began
providing the presentations there was one common occurrence. Most
people were unaware that human trafficking, which is just another
moniker for slavery, was occurring today. Today's form of slavery does
not bear the overt nature of pre-civil war slavery, but it is no less
heinous and reprehensible than the slavery of our Nation's past. Today,
human trafficking has surreptitiously found its way into our society
and continues to thrive even as I speak to this committee today.
As I mentioned earlier, human trafficking is nothing less than
modern day slavery. Trafficking is the recruitment, harboring,
transporting, provision, or obtaining of a person for labor or services
through the use of force, fraud or coercion for the purpose of
subjection to involuntary servitude, peonage, debt bondage and slavery
(TVPA 2000). Through interviews with victims, I have gained knowledge
of how traffickers accomplish their control of the victims. Traffickers
use threats and actual physical violence on victims to enforce their
will upon them. Victims have been beaten or have witnessed beatings of
other workers who would not relinquish their earnings, disobeyed
traffickers, who have left the camp and been found, or who have
attempted to escape. Traffickers create an environment of fear meant to
control and isolate victims. Another method of control used by
traffickers is to hold a victim in a system perpetually accruing debt.
Victims have incurred debts for housing, food, water and
transportation. In one instance, victims related to me were charged 3
days worth of wages if they were sick for 1 day and could not work.
This of course is added to the debt then subtracted from what the
victims have earned at the end of the week. Victims earning a dollar
per bucket of picked tomatoes can work for the full week and receive
nothing more than $20 from the trafficker at the end of the week.
Traffickers use threats against the victim's family in their home
country to control the victims. In one instance, a victim ran away from
the camp and the traffickers called the victim's family in Mexico. The
family was threatened and told to tell the victim, he needed to return
to the camp or the traffickers would kill the family. Once the victim
heard this, he returned to the camp. This same tactic has hindered an
investigation of mine. Victims were cooperative, and were ready to
assist in prosecution. They subsequently related this to their family,
and the family asked them to no longer cooperate. The family became
fearful for their lives because as the victims said to me the
traffickers are the law of the village. I asked the victims what this
meant. They replied the trafficker's family has all the guns, and they
run the village.
These are only a few of the examples of what I have learned during
my investigations. Traffickers employ these and several other methods
to exploit victims for the traffickers own personal financial gain. The
bottom line is the traffickers profiting from the suffering of other
human beings to satisfy their greed. Traffickers cultivate this
environment of fear to their own benefit and because of the fear; few
people are willing to identify themselves as victims to law enforcement
making my task difficult at best.
The State of Florida has been the venue of several cases of human
trafficking over the past decade. During this time, several cases have
been brought against traffickers who have forced their victims to work
in the agricultural fields in Florida. Victims of these cases were
forced to work in both tomato and citrus fields. One common denominator
identified by Florida State University's Center for the Advancement of
Human Rights (CAHR) research and in my investigations is in almost all
cases of labor trafficking in Florida, the traffickers are
subcontractors to larger businesses. This system also allows the larger
corporation to remain willfully blind of any abuses occurring and
minimize any liability. In turn, both the trafficker and the business
profit from the work of the enslaved victim. Currently, actual
knowledge is the standard of proof required to find a business culpable
of human trafficking offenses. Short of a change to State and Federal
law both corporations and traffickers will be able to continue to
profit from this system.
Since United States vs. Ramos in 1997 until now and including
investigations I am currently involved with human trafficking, slavery,
is occurring in the agricultural fields of Florida. Because the work is
migratory, slavery is not just affecting Florida but other States as
well where workers are transported to pick in the fields. In addition,
this atrocity has affected U.S. citizens who were enslaved in Florida
in the case of United States. vs. Evans where U.S. citizens were held
and forced to work in the citrus fields. One public misperception is
that a person needs to be transported into this country to be a victim
of human trafficking. This couldn't be further from the truth and not
required by the Trafficking Victims Protection Act. Knowing that this
is occurring not just in the State of Florida but across the Nation, it
is egregious that any entity should deny the existence of human
trafficking. This arrogance, willful blindness, and lack of social
responsibility offends our basic rights guaranteed by our Nation's
constitution.
Once again, I would like to thank Chairman Kennedy, Ranking Member
Enzi, Senator Sanders, and the other distinguished members of this
committee for allowing me to be here today.
It would be my pleasure to answer any questions this committee has.
Senator Sanders. Thank you very much, Mr. Frost.
Eric Schlosser is a well-known investigative reporter,
familiar with agriculture and food issues, and we thank him
very much for being with us.
STATEMENT OF ERIC SCHLOSSER, INVESTIGATIVE REPORTER, MONTEREY,
CA
Mr. Schlosser. Thank you. I would like to thank the
committee for inviting me to testify here today.
I have been involved for more than a decade in the effort
to improve the lives of America's farmworkers, and I am here
today to say that what is going on in the tomato fields of
Florida right now is so bad that it defies words. Senator
Sanders and I happened to be in Immokalee, FL, this January
when the U.S. Department of Justice released its indictment in
the latest slavery case there. Here are some details from that
case.
The defendants have been accused of threatening, slapping,
and kicking farmworkers, chaining them to a pole, beating them,
locking them inside U-Haul trailers, keeping them in debt, and
forcing them to work for free. The indictments read like
something you might see in the year 1868, not the year 2008.
Last year, a Florida labor contractor named Ronald Evans,
Sr., was sentenced to 30 years in Federal prison for a wide
variety of crimes. Evans had recruited migrant workers at
homeless shelters throughout the Southeast, often paid them
with crack cocaine instead of cash, kept them in debt, and
housed them behind a fence topped with barbed wire.
Mr. Evans wasn't recruiting migrants for some fly-by-night
operation, some fringe operator. Mr. Evans was working for the
former chairman of the Florida Fruit and Vegetable Association,
one of the most prominent farmers in the State. I find it
incredible that in the year 2008 there is still slavery in the
United States. I find it even more incredible that the tomato
growers of Florida and some of their fast food customers
continue to deny that these abuses exist.
During the same week that three tomato pickers escaped from
a U-Haul truck where they were being imprisoned, setting in
motion the Justice Department's latest slavery case, during
that very week, representatives of the Florida Tomato Growers
Exchange and the Burger King Corporation staged a press junket
in a nearby field and claimed that slavery wasn't a real
problem.
They presented an independent report by an independent
auditor that suggested there was no slavery in the tomato
fields of Florida. Their so-called independent auditor was soon
proven to be totally and independently wrong.
I am glad that Reginald Brown from the Florida Tomato
Growers Exchange is here with us today. Mr. Brown, if your
farmers are doing such a good job taking care of their workers,
why have none of the seven major slavery cases in Florida been
uncovered by one of your farmers or by one of their farm
managers? The labor contractors in this industry are in an
ideal position to uncover these abuses. Yet, again and again,
they have been the ones indicted and convicted and sent to
Federal prison for committing these abuses.
Mr. Brown, you have said that your industry is shocked and
appalled by the idea of involuntary servitude. Yet, after Abel
Cuello was released from Federal prison after being convicted
of slavery, after holding more than 30 tomato pickers at an
isolated camp against their will, after all of that, Abel
Cuello was released from Federal prison and then hired as a
labor recruiter by one of the largest tomato growers in
Florida. I ask what kind of message does that send?
Why hasn't your organization condemned the rehiring of a
man convicted of slavery? Mr. Brown, you have said more than
once that it would be un-American for a fast food company to
pay an extra penny per pound for tomatoes with the extra penny
going to the migrants. Well, I say it is un-American to allow
slavery in the year 2008, to deny that this problem is real,
and to vilify and attack the one group, the Coalition of
Immokalee Workers, that has done more than any other to fight
against slavery in the State of Florida.
I applaud the committee for today's hearing. Much more
needs to be done to hold tomato growers accountable for what is
happening to their workers. Farmers who obey the law shouldn't
have to compete with farmers who employ slave labor. These
abuses are un-American. They are unacceptable. And they must
stop.
Thank you.
[The prepared statement of Mr. Schlosser follows:]
Prepared Statement of Eric Schlosser
I'd like to thank the committee for inviting me to testify here
today. I have been involved for more than a decade in the effort to
improve the wages and working conditions of America's farmworkers. This
committee deserves much praise for taking an interest in the plight of
some of the poorest working men and women in the United States. What is
happening right now in the tomato fields of Florida is so bad that it
almost defies description, let alone belief.
This January Senator Bernie Sanders and I happened to be visiting
Immokalee, FL, the heart of the State's tomato-growing region, when the
U.S. Justice Department released its indictments in the latest
farmworker slavery case. The defendants in the case have been accused
of threatening, slapping and kicking workers, beating workers, locking
them inside trucks, chaining them to a pole, deliberately keeping them
in debt and forcing them to work for free. The indictments read like
something you might encounter in the year 1868, not 2008. The
defendants have been charged, among other things, with violating the
13th amendment of the U.S. Constitution. That is the amendment
outlawing slavery and involuntary servitude.
I find it incredible that in the year 2008--the two hundredth
anniversary of the abolition of the slave trade--there is still slavery
in the United States. I find it even more incredible that the tomato
growers of Florida and some of their largest customers continue to deny
that such abuses exist. It was pure coincidence that the Department of
Justice's slavery indictments were announced on the same day that
Senator Sanders and I were talking to tomato pickers in Immokalee. But
you do not need to be a rocket scientist or have an advanced degree in
farm labor economics to see that the living conditions and the working
conditions there are terrible. You need only spend a few hours talking
to farmworkers, away from the prying eyes of their labor contractors
and employers.
I think most Americans would agree that the practice of slavery in
the United States is unacceptable. But that sense of outrage does not
seem to extend to the tomato growers of Florida and some of their fast
food customers. During the same week that three tomato pickers climbed
through the ventilation hatch of the box truck where they were being
held against their will and escaped to freedom, setting in motion the
Justice Department's latest slavery case--during that very same week,
representatives of the Florida Tomato Growers Exchange and the Burger
King Corporation staged a press junket in nearby fields, introducing
reporters to happy farmworkers with ``no complaints'' and strongly
denying that involuntary servitude or slavery was a problem. Perhaps
the growers and some of their fast food customers are sincerely unaware
that tomato pickers are being exploited. But such earnest pleas of
ignorance bring to mind the scene in the film Casablanca when a French
policeman, Captain Renault, is ``shocked, shocked'' to find out that
gambling is occurring--at the casino where he regularly gambles.
The plight of tomato pickers in Florida needs to be understood in a
broader historical context. Farmworkers are now, and have long been,
among the poorest workers in the United States. The historian Cletus E.
Daniel has described early twentieth century efforts to recruit
farmworkers for California's fruit and vegetable harvest as ``the
search for a peasantry.'' In 1951 the President's Commission on
Migratory Labor condemned the abysmal working conditions that
farmworkers endured. ``We depend on misfortune to build up our force of
migratory workers,'' the commission concluded, ``and when the supply is
low because there is not enough misfortune at home, we rely on
misfortune abroad to replenish the supply.'' During the 1970s,
campaigns led by Cesar Chavez and the United farmworkers union raised
wages and greatly improved working conditions. But most of those gains
were lost during the 1980s and 1990s. According to the U.S. Department
of Labor, the typical farmworker earns roughly $10,000 to $12,000 a
year. That figure may be somewhat inflated, due to the inclusion of
supervisory workers in the most recent wage survey. In 2001 the
Department of Labor estimated that the typical farmworker earned about
$7,500 a year. It is hard to see how some of the most desperate workers
in the United States gained a pay increase of 50 percent or more during
the past 7 years. Whatever the actual figure, there is little dispute
that farmworkers rank near the very bottom of the American pay scale.
Farmworkers not only do hard manual labor for low wages, but they
also suffer enormous stress and uncertainty about the prospects of
employment. Almost all harvest work is considered ``at will.'' There is
no contract, no seniority, no obligation from the employer beyond the
day-to-day. A farmer hires and fires workers as necessary, without need
for explanation. It makes no difference whether the worker has been an
employee for 10 days or 10 years. The terms of employment are laid down
on a daily basis. A migrant usually does not know how long he or she
will work on a given day--or even if work will be available. On a good
day, the wages that can be earned may be high. But a good day may be
followed by weeks without any work. This system gives an extraordinary
amount of power to farmers and their labor contractors.
I spent a year investigating the poverty of farmworkers in
California, the State with by far the largest number of migrants. I
found that migrants were living in garages, abandoned cars, labor camps
unfit to be horse barns. Right now there are thousands of farmworkers
living outdoors in the hillsides of northern San Diego County. At one
of the hillside encampments I visited, migrants slept beneath plastic
garbage bags at night and did their laundry each week in a neighboring
stream. The farmworkers I met seemed to embody a great many of the
virtues that we cherish in the United States. These migrants were hard-
working, deeply religious, devoted to their families--and yet were
being exploited. It seemed wrong to me, pure and simple. In this
country, hard work should get you out of poverty, not keep you in it.
Bad as things are for the migrant workers in California, the
migrants in Florida seem to have it even worse. Organizations like the
United Farmworkers Union and California Rural Legal Assistance provide
some outlet for migrant grievances and some hope for a better future in
that State. The primarily Latino workforce in Florida agriculture is
much more isolated, with little institutional support. The abuse of
farmworkers in Florida has a uniquely dark history. Various systems of
peonage, forced labor, and slavery thrived there long after the end of
the Civil War. For decades, African-American men convicted of petty
crimes were routinely leased to farmers and put to work in the fields.
An excellent historical account of this sort of convict-leasing has a
fitting title: Worse Than Slavery. Florida was one of the last States
in the south to outlaw convict-leasing, finally prohibiting it in 1923.
But Florida's vagrancy laws allowed sheriffs to arrest young African-
American men, fine them, and force them to pay off the fine by working
for local citrus and tomato growers. That practice continued well into
the 1940s.
Today the living conditions among migrant workers in Immokalee, FL,
though deplorable, are not as bad as in some rural California
communities. But the power that farmers wield in Florida seems much
more complete. The early morning scene in Immokalee's town square--
where crowds of migrants gather at dawn hoping to find work, and labor
contractors pick workers like cattle in an auction--feels like a scene
in a nineteenth century novel. ``Harvest of Shame,'' the documentary
about migrants made by Edward R. Murrow in 1960, opens with a similar
scene, showing migrants being selected and packed into trucks. Much of
``Harvest of Shame'' was filmed in Florida. In the documentary, a
Florida farmer describes his workforce in terms that remain
unfortunately relevant today: ``We used to own our slaves--now we just
rent them.''
Tomato pickers in Immokalee now earn about 40 to 50 cents for each
32-pound bucket that they harvest. The wage rate has not changed
significantly in 30 years. Adjusted for inflation, that means the wages
in Immokalee's tomato fields have declined by as much as 75 percent.
Tomato pickers are hired mainly by labor contractors, who try to shield
farmers from legal responsibility. The labor contractors often charge
migrants for food, housing, and transportation, deducting the costs
straight from the migrant's paycheck. Labor contractors often pay the
smuggling fees of new migrants, then force them to work off the debt.
This system is an invitation to abuse. Many of the recent slavery cases
in Florida involve illegal immigrants being held in servitude by their
labor contractors. But this is not primarily an immigration problem. It
is a human rights problem. U.S. citizens have been enslaved lately in
Florida, as well.
A Florida labor contractor named Michael Allen Lee recruited
migrants at homeless shelters, charged them for room, board,
transportation, and cigarettes, loaded them with debt, gave them as
little as $10 for a day's work in the fields, sometimes paid them in
crack cocaine and alcohol instead of cash, and threatened to hurt
anyone who ran off. Lee was later arrested, convicted in Federal court,
and given a 4-year prison sentence in 2001. A Florida labor camp owner
named Ronald Evans, Sr., also recruited migrants at homeless shelters,
focusing on African-American drug addicts. Evans pushed his workers
into debt, supplied them with alcohol and cocaine, housed them behind a
fence topped with barbed wire, and paid them less than one-third of
their full wages. Last year Evans was convicted in Federal court and
sentenced to 30 years in prison for a wide range of offenses. The seven
major slavery cases prosecuted in Florida over the past decade have all
been handled by the Department of Justice. In keeping with the brutal
history of farm labor in Florida, State officials have done little to
prevent or punish cases of involuntary servitude.
Not a single Florida farmer has thus far been prosecuted in the
seven Federal slavery cases, which have involved hundreds of migrants.
Perhaps the farmers who employed these migrants were entirely
innocent--entirely unaware that some of their workers were being beaten
and enslaved. If that is the case, then at the very least there is a
problem with labor management at the highest levels of Florida
agriculture. Ronald Evans, Sr., one of the labor contractors imprisoned
for paying migrants with crack cocaine, worked as a labor recruiter for
Frank Johns, a former chairman of the Florida Fruit and Vegetable
Association. The industry seems remarkably forgiving about violations
of the 13th amendment. In 1999, a labor contractor named Abel Cuello
was convicted in Federal court for enslaving at least 30 migrants in
Florida and South Carolina. After spending less than 3 years in prison,
Cuello was released, eventually regained his license as a labor
contractor and found work as a labor recruiter, along with his wife, at
Ag-Mart Produce, one of Florida's largest tomato growers.
The Department of Justice has done a fine job pursuing slavery
cases in Florida. But it can devote even more resources to the fight
against trafficking and involuntary slavery. A much stronger effort can
be made to hold farmers legally responsible for the enslavement of
their workers. Farmers in Florida must be held accountable for what
they suffer and permit to happen on their land. At the moment, a
loophole in the Trafficking Victims Protection Act makes it difficult
to prosecute farmers in slavery cases. That loophole should be closed,
and those who ``know or have reason to know'' about involuntary
servitude should face criminal charges. The Department of Labor should
devote greater resources to enforcing the labor laws not only in
Florida agriculture, but also in agriculture throughout the United
States. A significant increase in the Federal minimum wage---which,
adjusted for inflation, has declined by about 40 percent since the late
1960s--would greatly improve the lives of the Nation's poorest workers.
The immediate solution to these problems, however, does not lie
with the Federal Government or with State officials in Florida. The
largest purchasers of Florida tomatoes must take responsibility for the
labor conditions in which those tomatoes are produced. Fruit and
vegetable farmers today are under enormous pressure to cut operating
costs. They face increased competition from overseas suppliers and
price reductions imposed by their largest customers. A few years ago,
an article in The Packer, an industry journal, described the leading
role that fast food chains have played in lowering the prices that
Florida tomato farmers receive. ``Forcing down the cost of tomatoes, a
minor component on the fast food menu, does little to make the
restaurant more profitable'' the article warned. ``It will go a long
way toward harming a loyal group of suppliers and growers and their
workers.''
Today the major fast food chains stand atop America's food chain.
Their purchasing decisions can transform entire sectors of the Nation's
agricultural economy. The fast food chains issue strict product
specifications to suppliers and insist that they be met. When
McDonald's introduced the Chicken McNugget in the mid-1980s, it
fundamentally changed how poultry are raised, bred, processed and sold
in the United States. When McDonald's decided in 2000 not to purchase
any genetically modified potatoes, it effectively eliminated the market
for those potatoes. In recent years, the animal welfare demands of the
leading chains have prompted huge changes in the industrial practices
of the American meat packing industry.
The Coalition of Immokalee Workers recognized years ago that the
fast food industry has enormous influence over what happens in the
tomato fields of Florida. The coalition is a non-profit group that
works on behalf of migrants in Florida. It has led the campaign to
increase the wages of tomato pickers by one penny per pound, thereby
significantly raising their wages. It has helped the Department of
Justice investigate most of the slavery cases prosecuted since the mid-
1990s. In recognition of this work, the coalition has received awards
from the Robert F. Kennedy Memorial Foundation and Anti-Slavery
International, the world's oldest human rights group. The Coalition of
Immokalee Workers has been one of the few brave and effective defenders
of migrants in the State of Florida.
I have been a strong critic of the fast food industry for years.
But I applaud Yum! Brands Inc., the parent company of Taco Bell and
Pizza Hut, for its commitment to ending the exploitation of tomato
pickers in Florida. Its agreement with the Coalition of Immokalee
Workers provides a model for how wages can be meaningfully increased
and working conditions can be carefully monitored. The additional penny
per pound that Yum! has agreed to pay, given directly to the workers,
imposes no hardship upon Florida tomato farmers and does not increase
the consumer price of any Yum! Brands product. The McDonalds
Corporation deserves credit for agreeing to a similar arrangement.
The admirable behavior of these two industry giants makes the
behavior of Burger King and its ally, the Florida Tomato Growers
Exchange, seem completely unjustifiable. It is hard to see how the
payment of an extra penny per pound for labor costs would violate U.S.
antitrust laws, as the tomato growers claim. The Florida Tomato Growers
Exchange has imposed various surcharges on its members for years,
without running afoul of any Federal law. If it can impose a mandatory
surcharge for higher fuel costs (as was done in 2005), it can surely
allow a voluntary surcharge to help eliminate the poverty of tomato
pickers. Burger King, for its part, has argued that Florida tomato
pickers are actually well-paid--and at the same time has made a well-
publicized donation to a charitable group devoted to the children of
those workers. It is hard to see why the children of migrants who are
being paid a decent wage would need any charity whatsoever. The tomato
pickers in Florida are not asking for charity. They are seeking a fair
wage for their hard work and an end to slavery.
Instead of making charitable donations, Burger King should be
showing the same sort of concern for human rights that it recently
demonstrated on behalf of animal rights. ``Our corporate conscience
drives our commitment to animal welfare,'' a Burger King executive said
on March 27. ``For almost a decade we have used our purchasing power to
encourage positive steps in animal agriculture. We are proud to set an
example for the restaurant industry.''
If Burger King can partner with People for the Ethical Treatment of
Animals to improve the lives of chickens, it can certainly work with
the Coalition of Immokalee Workers, a far less controversial group, to
improve the lives of migrant workers in Florida.
The head of the Florida Tomato Growers exchange has called the
proposed one-penny surcharge for migrants ``un-American.'' I think most
Americans would strongly disagree. Slavery, indentured servitude,
desperate workers living in fear--that's what most people would
consider unacceptable and un-American. The exploitation of farmworkers
should not be tolerated in Florida. It should not be tolerated anywhere
in the United States. There are many social problems that are extremely
difficult to solve. This is not one of them. A few years ago I
calculated how much it would cost the typical American household if the
wages of every migrant farmworker was doubled. The answer was about $50
a year--and even that amount is probably too high. By paying a few
pennies extra, an enormous amount of misery can be ended. The large
fast food chains and supermarket chains must insure that those pennies
are paid, and that the money goes directly to farmworkers. A little bit
of compassion will go an awfully long way.
Senator Sanders. Thank you very much, Mr. Schlosser.
Mary Bauer is the Director of the Southern Poverty Law
Center's Immigrant Justice Project. She represents farmworkers
and other low-wage immigrant workers in high-impact cases in
nine States in the South. Ms. Bauer has a B.A. from William and
Mary and a law degree from the University of Virginia School of
Law.
Ms. Bauer.
STATEMENT OF MARY BAUER, DIRECTOR, IMMIGRANT JUSTICE PROJECT,
SOUTHERN POVERTY LAW CENTER, MONTGOMERY, AL
Ms. Bauer. Thank you, Senators, for inviting me to speak
about farmworkers in the United States.
Over the past 2 decades, I have spoken with thousands of
farmworkers in many States and represented workers in dozens of
wage and hour and other kinds of cases in numerous States
throughout the Nation. This is, unfortunately, not just a
Florida issue.
Farmworkers are desperately poor. While the Federal
Government has estimated that the average annual income of
farmworkers is a mere $11,000, that estimate is actually quite
high because it includes some higher paid workers, such as crew
leaders. A scholar studying farmworkers has said the most
vulnerable migrant workers, such as those working for farm
labor contractors in Eastern States, earn annual wages less
than $5,000 per year.
Farmwork is arduous and dangerous. Indeed, agriculture is
consistently rated among the most dangerous occupations in the
United States. But workers receive few benefits that other
workers take for granted. Farmworkers were excluded from nearly
all the major Federal labor laws passed during the New Deal.
Some laws have been amended since then, but many exemptions
remain.
For example, farmworkers are not entitled to overtime under
Federal law. On smaller farms and in short harvest seasons,
farmworkers are not even entitled to the Federal minimum wage.
Farmworkers are excluded from the National Labor Relations Act,
which protects workers' rights to collectively organize.
Child labor laws are riddled with exemptions for
farmworkers. Children may legally perform farmwork as young as
the age of 10, where 16 is the minimum age for many other
occupations. In preparation for this hearing, I interviewed
workers and advocates in Immokalee, FL, about their experiences
in the field. Their reports are wholly consistent with my own
experiences working with farmworkers over two decades.
Based on their reports, Immokalee tomato workers are
desperately poor, fearful of retaliation, lack benefits most
workers take for granted, and are denied access to basic legal
protections. Specifically, workers reported recurring problems
with waiting time and other violations of the Fair Labor
Standards Act.
Workers report that they show up for work and are required
to wait, often for hours, until the dew dries and the tomatoes
can be picked. Similarly, when it rains, workers are routinely
required to wait and are not paid for that time. Workers report
that their pay stubs routinely fail to reflect the actual
number of hours worked. Workers report that they are paid only
by their production and the hours are doctored to coincide with
that production.
Workers suffer long periods of unemployment and are forced
to migrant to obtain other low-paying, short-term jobs. When
they do not work for a day or a week or a month, they receive
no pay. Workers report that Government enforcement,
particularly as to wage and hour violations, has no practical
effect on their employment situation. Most workers report that
they would never call the Department of Labor under any
circumstances and have never seen Government enforcement
officials in the field.
Workers report chronic discrimination in hiring, placement,
and working conditions. Workers reported that the sexual
harassment of women on the job is a serious problem. Our office
represented a group of Immokalee farmworker women in a case
against a major tomato company in which the workers complained
of rampant sexual harassment and retaliation when they
complained. That case settled in 2007, but the problem remains
in the industry.
We receive numerous reports that children of very young
ages work in the field to help out the family income. Workers
fear retaliation if they complain or assert their rights.
Workers report significant problems with safe and uninsured
transportation to and between the fields. Workers are deeply
concerned about the risks associated with exposure to
pesticides. Workers express deep concerns about the crew leader
and subcontracting systems.
I spoke with Immokalee tomato workers about claims that
workers average over $12 an hour. Every worker and every
advocate with whom I spoke disputed that contention. ``Oh, if
it were only so,'' they said.
Congress should end agricultural exceptionalism that is
enshrined in the law. Farmworkers should be entitled to
overtime pay and the other kinds of protections that most
workers take for granted. Most importantly, farmworkers deserve
a living wage and strong enforcement of the law. The focus of
that enforcement should not be on low-level crew leaders, but
on the entities that have the power to change these conditions.
I thank you for this opportunity and await any questions
you might have.
[The prepared statement of Ms. Bauer follows:]
Prepared Statement of Mary Bauer
Thank you for the opportunity to speak to you about the abuses
experienced by farmworkers in the United States.
My name is Mary Bauer. I am the Director of the Immigrant Justice
Project of the Southern Poverty Law Center. Founded in 1971, the
Southern Poverty Law Center is a civil rights organization dedicated to
advancing and protecting the rights of minorities, the poor, and
victims of injustice in significant civil rights and social justice
matters. Our Immigrant Justice Project represents low-income immigrant
workers in litigation across the Southeast.
During my legal career, I have represented and spoken with
literally thousands of farmworkers in many States. Currently, the
Southern Poverty Law Center is representing agricultural workers in at
least six class action lawsuits in the South. I have handled dozens of
wage and hour cases in many States, and I am familiar with the kinds of
routine exploitation that low-wage immigrant workers generally--and
farmworkers specifically--experience.
In preparation for this hearing, I interviewed workers and
advocates in Immokalee, FL about their experiences in the field. What
they told me is consistent with my own experiences working with
farmworkers: Immokalee tomato workers are desperately poor, fearful of
retaliation, lack benefits most workers take for granted, and denied
access to basic legal protections.
farmworker demographics
There are 2 to 3 million farmworkers in the United States. Nearly
80 percent are male, and most are younger than 31 years of age. Most
farmworkers are married and/or have children, but most live apart from
their immediate family members as a function of their employment.\1\
---------------------------------------------------------------------------
\1\ National Agricultural Workers Survey, U.S. Department of Labor,
2005.
---------------------------------------------------------------------------
While the Federal Government has estimated that the average annual
income of farmworkers is a mere $11,000,\2\ that estimate is actually
quite high because it includes higher paid workers, such as
crewleaders. A scholar studying farmworkers has said:
---------------------------------------------------------------------------
\2\ National Agricultural Workers Survey, U.S. Department of Labor,
2005.
``Seasonal farmworkers are the poorest laborers in the United
States, earning an average of $6,500 per year. Farmworkers who
migrate are poorer than settled seasonal laborers, with
migrants earning $5,000 per year. The most vulnerable migrant
workers, such as those laboring for farm labor contractors in
eastern States, earn annual wages as low as $3,500.'' \3\
---------------------------------------------------------------------------
\3\ Daniel Rothenberg, With These Hands: The Hidden World of
Migrant Farmworkers Today (1998), p. 6.
Piece-rate workers are generally paid by the bucket--in tomatoes,
as little as 40 to 45 cents per bucket (a bucket is 32 pounds of
tomatoes). At that rate, farmworkers have to pick around two tons of
produce (125 buckets) to earn 50. The piece rate wages paid to tomato
workers have not changed significantly in more than 20 years.\4\ In
addition, workers reported that there is wide uniformity in the wages
paid by tomato growers.
---------------------------------------------------------------------------
\4\ Review of data from the Florida Department of Labor, 1980 to
present.
---------------------------------------------------------------------------
Migrant farmworkers are very poor, and they receive very few social
benefits. Less than 1 percent of farmworkers receive general assistance
welfare, and only 2 percent receive Social Security benefits.\5\
---------------------------------------------------------------------------
\5\ National Agricultural Workers Survey, U.S. Department of Labor,
2005.
---------------------------------------------------------------------------
Farmworkers have long periods of unemployment, and most do not
receive any form of pay, including unemployment compensation, during
those periods. Crop workers are employed in the United States an
average of 34\1/2\ weeks (66 percent) of the year.\6\
---------------------------------------------------------------------------
\6\ National Agricultural Workers Survey, U.S. Department of Labor,
2005.
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By the time a migrant farmworker child is 12 years old, he or she
may work in the fields between 16-18 hours per week, leaving little
time for school work.\7\
---------------------------------------------------------------------------
\7\ Migration Education Messages and Outlook (MEMO) 1994.
---------------------------------------------------------------------------
farmworker health and safety
Agriculture is consistently rated as one of the most dangerous
occupations in the United States.\8\ Farmworkers suffer from the
highest rate of toxic chemical injuries and skin disorders of any
workers in the country.\9\ The children of migrant farmworkers have
higher rates of pesticide exposure, malnutrition, and dental disease
than the general population. Children of migrant farmworkers are also
less likely to be immunized against disease.\10\
---------------------------------------------------------------------------
\8\ National Center for Farmworker Health.
\9\ National Agricultural Workers Survey, U.S. Department of Labor,
2005.
\10\ National Center for Farmworker Health.
---------------------------------------------------------------------------
Only 10 percent of farmworkers report having employer-provided
health insurance.\11\ None of the Immokalee workers I interviewed
reported having any health insurance whatsoever.
---------------------------------------------------------------------------
\11\ National Institute for Occupational Safety and Health, 2004.
---------------------------------------------------------------------------
agricultural exceptionalism in the law
Farmworkers were excluded from nearly all major Federal labor laws
passed during the New Deal. Some laws have been amended since then, but
many exemptions remain. The dire situation faced by farmworkers stems
from their lack of economic and political power. Because farmworkers
have no measurable political influence, there has been little organized
opposition to the efforts of agribusiness interests to deny farmworkers
most of the legal protections other American workers take for
granted.\12\ Among other things:
---------------------------------------------------------------------------
\12\ Farmworkers' lack of political clout predates the relatively
recent transformation of the farm labor workforce to one dominated by
undocumented workers. Even during the decades when most farmworkers
were U.S. citizens, their itinerant employment schedules, coupled with
local residency requirements, prevented the vast majority of them from
registering as voters.
Farmworkers are not covered by workers' compensation laws
in many States.
Farmworkers are not entitled to overtime pay under Federal
law.
On smaller farms and in short harvest seasons, farmworkers
are not entitled to the Federal minimum wage of $5.85 per hour.\13\
---------------------------------------------------------------------------
\13\ Also, in most southern States, either there is no State
minimum wage or farmworkers are expressly excluded from the State
statute's coverage.
---------------------------------------------------------------------------
Child labor laws are riddled with exemptions for
farmworkers. Children may legally perform farmwork as young as 10 years
of age. By contrast, 16 is the minimum age for most non-agricultural
jobs.
In some States, farmworker children are exempt from the
State's compulsory education laws.\14\
---------------------------------------------------------------------------
\14\ Under Alabama Statute Sec. 16-28-6(4), children who are
legally employed under the State child labor code are not obligated to
attend school. Because Alabama's child labor law (Ala. Stat. Sec. 25-
8-1) exempts agriculture, children employed in agriculture are not
required to attend school in the State.
---------------------------------------------------------------------------
Many State health and safety laws exclude farmworkers.\15\
---------------------------------------------------------------------------
\15\ See, e.g., Ala. Stat. 25-1-1; Ark. Code Ann. Sec. 11-2-101;
O.C.G.A. (Georgia) Sec. Sec. 34-2-2, 34-2-10; La. R.S. Sec. 23.13.
---------------------------------------------------------------------------
Farmworkers are not covered by the National Labor
Relations Act and thus have no protection against unfair labor
practices when they seek to collectively act for better wages or
working conditions, except in the handful of States that have passed
statutes extending NRLA-type protections to agricultural workers.
Although this hearing is not focused on conditions affecting H-2A
workers, it should be noted that the Department of Labor's existing
proposals to eviscerate the legal protections for those workers is
likely to have a deleterious impact on the wages and working conditions
of farmworkers generally. While the specifics of the Department of
Labor's proposals to change the H-2A regulations are beyond the scope
of my testimony today, the Southern Poverty Law Center strongly opposes
efforts by the Department to slash H-2A workers wages and weaken the
modest labor protections of the H-2A guestworker program.
farmworker conditions in the southeast are the worst in the nation
It is not merely coincidental that most of the major documentaries
and exposes relating to farmworkers over the past four decades, from
the epic ``Harvest of Shame'' aired in November 1960 to the April 2003
New Yorker article on ``American Slaves Today,'' have focused on
conditions in the Southeast. Historically, the worst abuses of migrant
farmworkers have occurred in the region. The Southeastern States
generally have few laws regulating employment, and those that exist
largely exclude farmworkers. The farmworker population in the Southeast
has always been composed principally of racial or ethnic minorities and
has suffered considerable prejudice as a result. Finally, far more than
in any other section of the country, growers in the Southeast have
relied on farm labor contractors, or ``crewleaders,'' to recruit,
supervise, transport, and pay the harvest workers. Undercapitalized and
poorly regulated, farm labor contractors oftentimes abuse or cheat the
workers, with the growers avoiding liability by contending that the
migrants are employees of the crewleader, rather than the farm.
In Florida, the Coalition of Immokalee Workers has committed to
eliminating slavery and other abuses in the agricultural industry. The
Coalition has been pivotal in making possible several important slavery
and peonage prosecutions. In a recent case brought to court, a Federal
grand jury indicted six people in Immokalee on January 17, 2008 for
their part in what U.S. Attorney Doug Mallow called ``slavery, plain
and simple.'' \16\ Unfortunately, despite the concerted efforts of the
Coalition, slavery and peonage continue in the fields of Florida and
the United States.
---------------------------------------------------------------------------
\16\ Ft. Myers News-Press, ``Group Accused of Keeping, Beating,
Stealing from Immokalee Laborers '' January 18, 2008.
---------------------------------------------------------------------------
The Federal Government must increase its enforcement efforts to end
these terrible abuses. Any focus on changing practices must entail a
high-level focus on the companies using the services of these farm
labor contractors and crewleaders. As United States Judge K. Michael
Moore of the Southern District of Florida noted at the sentencing of
one defendant found guilty of running a slavery operation in Florida:
``others at another level in this system of fruit-picking, at
a higher level . . . are complicit . . . They rely on migrant
workers, and they create a legal fiction or corporation that
insulates them between them and the workers themselves so that
they can be relieved of any liability for the hiring of illegal
immigrants. And yet they stand to benefit the most.'' \17\
---------------------------------------------------------------------------
\17\ Quoted in Rural Migration News; See also Miami Herald ``Fields
of Pain,'' series beginning, August 31, 2003.
In crafting solutions now, Congress should be mindful of its own
unsuccessful efforts to regulate abuses in the agricultural industry by
targeting solely farm labor contractors. In 1964, Congress passed the
Farm Labor Contractor Registration Act, which has been widely viewed as
a failure, and the act was later repealed.\18\ Congress later enacted
the Migrant and Seasonal Agricultural Worker Protection Act to regulate
employers directly.\19\ It is clear that reform will not occur as a
result of a crackdown on unscrupulous crewleaders because those
crewleaders lack the power to bring about real change.
---------------------------------------------------------------------------
\18\ Pub. L. No. 88-582, 78 Stat. 920 (1964) (repealed 1983);
Michael G. Tierce, Note, The
Joint Employer Doctrine Under the Federal Migrant and Seasonal Worker
Protection Act, 18 RUTGERS L.J. 863, 869 (1987) ( ``It is generally
agreed that FLCRA failed to achieve its objective of improving the
working conditions of the migrant farmworkers.'' )
\19\ 29 U.S.C. Sec. Sec. 1801-1874.
---------------------------------------------------------------------------
farmworkers lack effective legal remedies
Workers face dramatic barriers to obtaining legal redress when
their rights are violated. Migrant farmworkers are disproportionately
poor, non-English speaking, geographically isolated immigrants. For
many, they are in an unfamiliar country with virtually no money,
thousands of miles from home. They do not speak English. They are
fearful of retaliation by an employer who is often also their landlord.
Farmworkers' very reasonable fear is that the result of their asserting
their rights will be not only losing their jobs and their income and
being blacklisted from future employment, but also facing eviction and,
often, deportation. When their rights are violated, they have few
places, if any, to turn.
Government enforcement of basic labor protections has decreased for
all American workers in recent decades. The number of wage and hour
investigators in the Department of Labor (DOL) declined by 14 percent
between 1974 and 2004, and the number of completed compliance actions
declined by 36 percent. During this same period, the number of U.S.
workers covered by the Fair Labor Standards Act increased by more than
half--from about 56.6 million to about 87.7 million.\20\ The Brennan
Center for Justice concluded in 2005 that ``these two trends indicate a
significant reduction in the Government's capacity to ensure that
employers are complying with the most basic workplace laws.'' \21\
---------------------------------------------------------------------------
\20\ Brennan Center for Justice, Trends in Wage and Hour
Enforcement by the U.S. Department of Labor, 1975-2004, Economic Policy
Brief, No. 3, September 2005.
\21\ Id.
---------------------------------------------------------------------------
Over the past 15 years, the U.S. Department of Labor, the agency
charged with primary enforcement of Federal laws protecting migrants,
has sharply reduced its resources directed to cases of farmworker
abuse. This reduction is particularly acute in the Southeast. Although
historical data reveal that more violations of farmworker protective
laws occur in the Southeast than in any other area of the country, the
Department of Labor's efforts have lagged badly in this region.
There is a particular absence of enforcement against growers, with
the majority of enforcement resources devoted to judgment-proof,
itinerant farm labor contractors, or ``crewleaders,'' despite the fact
that the principal Federal farmworker protective law provides that
growers are responsible for ensuring farmworkers are properly paid,
housed, and transported whenever the growers ``employ'' the
workers.\22\
---------------------------------------------------------------------------
\22\ Most courts analyzing such situations have concluded that the
growers ``employ'' migrant workers supplied to them by farm labor
contractors. See, e.g., Charles v. Burton, 169 F.3d 1322 (11th Cir.
1999); Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997); Antenor v. D
& S Farms, 88 F.3d 925 (11th Cir. 1996); Luna v. Del Monte, 2008 U.S.
LEXIS 21636 (N.D. Ga. 2008).
---------------------------------------------------------------------------
For many years, enforcement of farmworkers' legal rights has come,
in part, through advocacy undertaken by grantees of the Legal Services
Corporation (``LSC''). Beginning in the mid-1970s, the LSC started
making special grants for LSC programs to serve migrant farmworkers in
various States. Because of the restrictions placed on those programs in
1996, these programs have been unable to file class action lawsuits and
to represent undocumented workers for more than 10 years. These
restrictions mean that LSC programs cannot bring the very impact
litigation most likely to bring about legal change.
There have been some efforts to interest private practitioners in
taking on representation of migrant workers in the Southeast.
Unfortunately, migrant farmworker cases are generally unattractive to
the private bar. The logistics of such litigation are daunting, and the
cases are not generally financially lucrative.
Farmworker advocates have also attempted to use the Justice
Department's Civil Rights Division as a mechanism to address situations
that constitute peonage. However, jurisdiction is limited to those
matters that reach the threshold of peonage. Very few criminal cases
have been, or will be, brought. For each worker who can present a
credible, corroborated claim of threat, there may be a hundred victims
who have suffered the same kind of harm, but may not be able to prove
that they are victims of a severe form of trafficking.
In addition, criminal cases will not result in farmworker victims
being adequately compensated; even in the rare case where the
contractor is prosecuted, most of the victims will never receive even
their unpaid minimum wages.
Perhaps the greatest shortcoming of reliance on criminal
prosecutions to curb farmworker exploitation has been the inability to
reach those who benefit economically and have the power to restrain
violations of the workers' rights--the farm owners who employ the
services of the farm labor contractors.
women workers face systemic abuse on the job
It is estimated that there are 70,000 women farmworkers in Florida
alone.\23\ For some women workers, problems include chronic sexual
harassment on the job. The problem has received little public attention
but is well-known to farmworker women, many of whom remain silent about
sexual exploitation on the job.
---------------------------------------------------------------------------
\23\ Larson, A Farmworker Enumeration Study, 2000; National
Agricultural Workers Survey, U.S. Department of Labor.
---------------------------------------------------------------------------
According to a study done by Maria Elena Trevino-Lopez, ``. . .
Ninety percent of the farmworker women, the overwhelming majority of
these women being immigrants, reported that sexual harassment is a
major problem confronting women farmworkers in the workplace.'' \24\
While investigating harassment of farmworker women in California, the
U.S. Equal Employment Opportunity Commission found that hundreds, if
not thousands, of farmworker women had to have sex with supervisors to
get or keep jobs.\25\ In addition, these women put up with a constant
barrage of grabbing, touching and propositions for sex by their
supervisors.\26\
---------------------------------------------------------------------------
\24\ Dominguez, Maria M. Sex Discrimination & Sexual Harassment in
Agricultural Labor. 6 Am. U.J. Gender & L. 231, 14 (Fall 1997)
\25\ Ontiveros, Maria L. Lessons from the Fields: Female
Farmworkers and the Law. Maine Law Review, 55 Me. L. Rev. 157, 8
(2003).
\26\ Id.
---------------------------------------------------------------------------
In one of the few such lawsuits ever brought on behalf of
farmworker women in the United States, the Southern Poverty Law Center
represented five Haitian women who were sexually harassed on the job
while working in the packing house of Gargiulo, Inc. in Immokalee, FL.
The lawsuit alleged that the women were subjected to repeated,
unwelcome sexual advances by their supervisor and then faced
retaliation after they complained. The women, who worked as tomato
graders, rejected the supervisor's advances and then were suspended
without pay, subjected to adverse working conditions and either fired
or not rehired for a new packing season.
In reaching a settlement in 2007, Gargiulo, Inc., one of Florida's
largest fruit and vegetable wholesalers, agreed to pay $215,000 and
entered into a consent decree to change its practices.\27\
---------------------------------------------------------------------------
\27\ EEOC v. Gargiulo, Inc., No. 2:05-cv-460-Ft.M-29-SPC (M.D.Fla.
2005).
---------------------------------------------------------------------------
In another case involving women in tomato packing, the EEOC Miami
District Office filed a title VII action alleging that defendants,
national produce companies, subjected three female employees at its
Immokalee, FL vegetable grading and packing facility to a sexually
hostile work environment through the offensive verbal and physical
conduct of two supervisors. The complaint also alleged that one of the
employees was discharged in retaliation for rejecting the sexual
advances of her supervisor. Defendants' sexual harassment policy was
written only in English even though its workforce was comprised largely
of immigrants of Haitian or Hispanic descent who read little or no
English.\28\
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\28\ EEOC v. Produce, Inc., and Six L's Packing Co. No. 2:03-cv-
570-FtM-29DNF (M.D. Fla. November 30, 2004).
---------------------------------------------------------------------------
In addition to sexual harassment in the workplace, immigrant women
face other forms of gender discrimination, including unequal pay for
equal work, pregnancy discrimination and disparate treatment.
tomato workers in immokalee report chronic workplace abuse
I have conducted numerous interviews with tomato workers and their
advocates, in Florida and in other States. They report the following
chronic difficulties:
Workers suffer recurring problems with unpaid ``waiting
time'' and other violations of the Fair Labor Standards Act. Workers
routinely report that they show up for work and are required to wait,
often for hours, until the dew dries and the tomatoes can be picked.
Similarly, when it rains, workers are routinely required to wait, and
are not paid for that time. As one worker told me: ``We are paid only
when we pick; we are paid only for the buckets we produce.'' \29\
---------------------------------------------------------------------------
\29\ See, for example, Mesa, et al. v. Ag-mart, (M.D. Fla., January
26, 2007).
---------------------------------------------------------------------------
I spoke with Immokalee tomato pickers about claims that
workers average over $12 per hour. Every worker and every advocate with
whom I spoke disputed that contention. One workers' response summed up
the general refrain: ``If it were only so!''
Workers reported to me that their paystubs routinely fail
to reflect the actual number of hours worked. Workers report that the
hour records on their pay stubs are routinely falsified to show that
they have worked substantially fewer hours than they did, in fact,
work. Workers report that they are paid only by their production, and
the hours are ``doctored'' to coincide with their production. Thus,
workers on identical crews who work identical hours (and who travel to
the fields together) will have wildly disparate hours reported on their
pay.
Workers suffer long periods of unemployment and are forced
to migrate to obtain other low-paying, short-term jobs. When they do
not work--for a day, or a week, or a month--they receive no pay. For
low-income families, this is devastating.
Workers report that government enforcement, particularly
as to wage and hour violations, has no practical effect on their own
employment situation. Most workers told us that they would not consider
calling the Department of Labor under any circumstances. None report
having seen or spoken with any government enforcement agents.
Workers report chronic discrimination in hiring,
placement, and working conditions. Employers have a strong preference
for young men. Men over the age of 35 are considered undesirable.
Women, too, are less desirable. All workers reported that sexual
harassment of women on the job is a problem.
Workers report that there are significant difficulties in
obtaining safe and decent housing at affordable rates.\30\
---------------------------------------------------------------------------
\30\ See Renteria-Marin, et al. v. Ag-Mart Produce Inc., et al, 488
F. Supp. 2d 1997 (M.D. Fla. 2007).
---------------------------------------------------------------------------
We received numerous reports that children of very young
ages work in the field to ``help out'' the family income. These
children typically do not receive their own paystub (a violation of
law); their production is simply added onto the pay of their parents.
Workers report significant problems with uncompensated
accidents and illnesses. Because workers are not paid when they do not
show up for work (no worker reported having either health insurance or
paid vacation or sick time), workers routinely work even when hurt or
sick.
Workers report significant problems with fears of
retaliation if they complain or assert their rights. As one worker
said: ``If you say something, they fire you.''
Workers report significant problems with unsafe and
uninsured transportation to and between fields.
Workers report very significant problems with exposures to
pesticides. Many incidents of the overuse of pesticides in the tomato
industry, and the effects on workers and their families, have been
well-documented.\31\ According to the Palm Beach Post, in a recent 10-
year period, Florida inspectors found 4,609 violations of pesticide
regulations, but only 7.6 percent resulted in fines.
---------------------------------------------------------------------------
\31\ See Palm Beach Post ``Why Was Carlitos Born This Way? '' March
16, 2005; see also Herrera v. Ag-Mart Produce, Inc., Circuit Court of
Hillsborough County, Florida, Case No. 06-001725, Division B.
---------------------------------------------------------------------------
Some workers are employed through farm labor contractors,
rather than directly through the employer. This exacerbates existing
abuses, and means that workers have fewer real remedies.
conclusion
The exploitation of migrant farmworkers is one of the major civil
rights issue of our time. Laws excluding farmworkers from protection
and the restrictions that keep legal services lawyers from effectively
representing the most vulnerable workers are morally unacceptable.
Far more can be done to improve conditions for farmworkers in the
Southeastern United States and in the United States more generally.
There is no justification for the continued agricultural exceptionalism
that is codified in our laws. Farmworkers who labor long, arduous hours
should be paid overtime wages and they should be eligible for
unemployment compensation when they are out of work. The restrictions
on legal services undermine efforts to enforce legal protections.
Congress alone has the authority to change many of those laws.
Congress must demand an increase in the effective enforcement of
the legal rights of workers by the Department of Labor and other
agencies--with a strong, targeted focus on growers and associations,
rather than on crewleaders.
We must all support the efforts made by workers themselves to
improve their wages and working conditions. Where workers come together
to take courageous actions to enforce their rights--such as the workers
who have created the Coalition of Immokalee Workers--those efforts
should be supported. The workers who do the backbreaking work to put
produce on our table should receive a decent, living wage. Each day we
accept the benefits of that labor; we should also accept the
concomitant responsibility to ensure that workers are treated fairly.
Thank you again for the opportunity to testify. I welcome your
questions.
Senator Sanders. Thank you very much, Ms. Bauer.
Reginald Brown is the Executive Vice President of the
Florida Tomato Growers Exchange. Prior to joining the exchange,
Mr. Brown worked for the Florida Fruit and Vegetable
Association and also for the Collier County Extension, as
director for the Florida Cooperative Extension.
Mr. Brown, thanks very much for being with us.
STATEMENT OF REGGIE BROWN, EXECUTIVE VICE PRESIDENT, FLORIDA
TOMATO GROWERS EXCHANGE, MAITLAND, FL
Mr. Brown. Thank you, Senator.
Just as our growers need seed, rain, and Florida sunshine,
we need the workers to harvest our crops. We value the services
of our workers by paying and treating our workers fairly. The
fact that thousands voluntarily return to our fields to pick
tomatoes year after year, decade after decade demonstrates that
fact.
We are here before this committee because the Coalition of
Immokalee Workers, a purported Florida labor organization, has
leveled accusations at Florida's tomato growers on a number of
fronts. We thank you for the opportunity today to state the
facts, which stand in stark contrast to CIW's charges.
In the past several years, CIW has organized boycotts of
major fast food corporations and demanded that these companies
pay an extra penny a pound to workers who pick tomatoes they
buy. Two fast food companies, Yum! Brands and McDonald's,
agreed to the deal and, in turn, have pressured Florida's
tomato growers to take on the role of passing the extra
payments onto their workers. For a number of sound business
reasons and legal reasons, the producers have declined to
participate.
The CIW has also accused Florida's tomato producers of
slavery, substandard housing, abusive working conditions, and
sub-poverty wages. Each claim raised--housing, wages, working
conditions, and slavery--are addressed by local, State, and
Federal laws. We absolutely agree with the committee that these
laws should be aggressively enforced. Our growers comply with
all of these laws and many others.
First, let me state unequivocally that the Florida tomato
growers abhor and condemn slavery. We are on the same side in
this issue. It is outrageous to have slavery happening in
Florida or any other State. Like all Americans, we are angered
that slavery is even an issue in America in 2008. The reality,
however, is that there are, indeed, cases of slavery and human
trafficking occurring in many States today, and that is a
tragedy.
Many of our growers provide free and inexpensive housing
that must pass Government inspection. We are committed to
providing positive housing solutions for our workers and their
families. Broad charges have been made that workers are being
exploited and that Florida growers are not following labor
standards. We firmly deny those allegations. It is difficult to
prove a negative that our members are not and have no pattern
of exploiting our workers.
In 2005, we met with the officials of McDonald's to discuss
how our growers could best show we were improving working
conditions for our workers. A program was developed that calls
for thorough direct auditing by independent third parties to
assure that working standards are met and that workers are
receiving the wages to which they are entitled. This program is
the first of its kind in the U.S. produce industry, and we are
proud of making that step forward. The program is Socially
Accountable Farm Employers, or SAFE. SAFE is an independent,
nonprofit organization that independently audits, certifies
fair, legal farm labor practices in the agricultural industry.
Exchange members pay their employees competitive wages. We
must if we are to have workers each season to plant and harvest
our crops. Otherwise, workers will go elsewhere. It is
important to note that farmworkers are seasonal employees who
often work for multiple employers during the year.
Tomato harvesters have the opportunity to earn more than
double the Federal minimum wage of $5.85 and nearly double
Florida's $6.79 minimum wage. These are legal, competitive, and
fair wages. Tomato harvesters' wages potentially can exceed by
a considerable margin the hourly wage for most workers at fast
food restaurants.
Our exchange is a voluntary association of tomato growers.
As a group, the growers have made a business decision not to
participate in the penny a pound distribution arrangement, as
is their right. For the record, we did not object to the fast
food chains paying extra to workers who pick the tomatoes they
buy. Our members simply do not want to be part of that
arrangement.
The critical fact is that no one can identify which worker
should receive an additional payment, nor can the correct
payment be calculated. If the extra penny funds are distributed
among all workers, the fact that some will be paid too much and
others will not get what is due them, this is neither right,
nor fair.
The exchange strongly believes because the parties to the
arrangement know it is impossible to distribute the correct
payment amounts to the right workers, the growers'
participation would open them up to lawsuits from workers who
were knowingly treated unfairly. Workers also could allege that
it was or is a scheme to defraud them, and each check issued
could be a separate bank or wire fraud. This is the definition
of RICO.
We believe that if our growers participate, they will be
placed at a competitive disadvantage in the marketplace. We
believe that ultimately the fast food chains and other
companies will buy tomatoes elsewhere, most likely Mexico. If
the business shifts offshore, not only will tomato harvesters
be without the extra penny, they will be without jobs.
We believe that entering into CIW's penny a pound program
would legally tie the growers with each of our parties to the
agreement. Our growers, the CIW, the fast food chains, and
their suppliers would become joint employers under the Migrant
and Seasonal Workers Protection Act. Given the fact that the
growers are not mandated to participate in the penny a pound
program and based on the facts as we know them, it would not be
rational, reasonable, or in the best interest of the growers to
join the program.
We called upon CIW to take on the task of providing a way
for Yum! and McDonald's to distribute monies to its members and
workers without involving the growers. Alternatively, like our
growers, McDonald's could contribute to charities that will be
helpful to CIW's members and workers and their communities,
such as the Catholic Charities, the University of South Florida
Migrant Scholarships, the Redland Christian Migrant
Association, and many others.
There is no question that the harvesting of tomatoes is
physically demanding work that most people do not want to do.
Florida tomato producers are grateful to have a steady
workforce that allows us to provide Americans with a bountiful,
nutritious, and healthful crop. We have and continue to work
with organizations such as Redland Christian Migrant
Association, Catholic Charities, the University of South
Florida Migrant Scholarships, and others so that we can jointly
create, develop, and execute meaningful programs relating to
healthcare, child care, housing, and education so that
farmworkers and their families have a real chance to achieve
the American dream.
Thank you for giving us the opportunity to present our
position on these issues.
[The prepared statement of Mr. Brown follows:]
Prepared Statement of Reginald L. Brown
introduction
My name is Reggie Brown. I am the Executive Vice President of the
Florida Tomato Growers Exchange (the Exchange). I worked for the
Collier County Extension Director for the Florida Cooperative Extension
Service in the 1980's. I worked for the Florida Fruit & Vegetable
Association as Marketing Director for 11 years before working for the
tomato industry. Our members are tomato growers. We harvest generally
from November through May. Almost half of all the tomatoes consumed in
the United States year-round come from the Sunshine State.
Tomato growers have seen major challenges in recent years from
hurricanes, invasive pests and diseases, and increased international
competition from Mexico and Canada. The fruit and vegetable industry is
a critically important sector of Florida agriculture, which is second
only to tourism in importance to the State's economy. According to a
2006 University of Florida study, agriculture, food manufacturing and
natural resource industries in Florida directly create more than
400,000 full- and part-time jobs, with a total employment impact of
more than 700,000 full-time and part-time jobs. The direct value-added
contribution is estimated at $20.32 billion, with a total impact of
$41.99 billion.
During the winter, Florida competes in the U.S. marketplace with
Mexico and Canada. During the 6- to 7-month harvesting season,
Florida's tomato growers employ more than 30,000 tomato workers.
Just as our growers need the seeds, rain and Florida sunshine, we
need the workers to harvest our crops. We value the services of our
workers by paying and treating our workers fairly. The fact that
thousands voluntarily return to our fields to pick tomatoes year after
year, decade after decade, demonstrates that fact.
background
We are here before this committee because the Coalition of
Immokalee Workers (CIW), a purported Florida labor organization, has
leveled accusations at Florida's tomato growers on a number of fronts.
We thank you for the opportunity today to state the facts, which stand
in stark contrast to the CIW's charges.
In the past several years, the CIW has organized boycotts of major
fast-food corporations and demanded that these companies pay an extra
penny-per-pound to workers who pick the tomatoes they buy. Two fast-
food companies, Yum! Brands and McDonald's, agreed to the deal and in
turn have pressured Florida's tomato growers to take on the role of
passing the extra payments on to their workers. For a number of sound
business and legal reasons, the producers have declined to participate.
In the meantime, the CIW also has accused Florida's tomato
producers of slavery, substandard housing, abusive working conditions,
and sub-poverty wages. Each claim raised--housing, wages, working
conditions, and slavery--are addressed by local, State and Federal
laws. We absolutely agree with the committee that these laws should be
aggressively enforced. Our growers comply with all of these laws and
many others, too.
My testimony today will refute the false allegations that have been
made by the CIW and perpetuated in the media. It also will outline the
growers' concerns over the penny-per-pound initiative, explain the
technical and legal reasons they have chosen not to participate and
suggest better solutions to improve the lives of farmworkers.
slavery
First, let me state unequivocally that Florida's tomato growers
abhor and condemn slavery. We are on the same side on this issue. It is
outrageous to have slavery happening in Florida or in any other State.
However, charges that tomato growers have enslaved workers are false
and defamatory. Indeed, in correspondence with members of this
committee and during meetings with Senators and staff, we have
denounced slavery and these unsubstantiated claims. We could not
survive without our valued employees.
On numerous occasions, we have asked for any evidence that would
substantiate these allegations against growers of Florida tomatoes and
have received none. To the best of our knowledge, CIW has not taken any
such evidence to the appropriate Federal, State or local authorities
who are vested with oversight in these matters. If we had any
information indicating a grower was involved in slavery, we would
immediately turn it over to authorities and assist in prosecution.
There is some confusion involving labor contractors and their
relationship with growers. Like the workers, these contractors are
employed by the growers. They assemble a crew and bring them to a farm
and they as well as the workers are paid directly by the grower. To
ensure that the workers are treated fairly and paid directly, growers
participate in the SAFE program described in greater detail below. SAFE
provides certification by an independent third party that the working
conditions are safe and fair for the workers. No other produce group in
the country has such a program to help workers.
Like all Americans, we are angered that slavery is even an issue in
America in 2008. The reality, however, is that there are indeed cases
of slavery and human trafficking occurring in many States today, and
that is a tragedy.
housing
Many of our growers provide free or inexpensive housing that must
pass government inspection. Many employers also pay for utilities
including gas, electric, water and garbage, even when workers are not
picking tomatoes. We are committed to provide positive housing
solutions for our workers and their families.
We are not aware of any substandard housing being owned, operated
or controlled by any member of our Exchange. I was advised by members
of this committee of sub-standard housing in Immokalee, FL. We
requested any specific information that might help us investigate but
received none. However, we did contact the Collier County Commissioner
for Immokalee and asked that appropriate county agencies query the CIW
about any specific cases of substandard housing, follow-up on the
complaint and enforce the County's housing code.
working conditions
Broad charges have been made that workers are being exploited and
that Florida tomato growers are not following labor standards. We
firmly deny these allegations. Again, we have asked for specific
information on where this might be occurring so we could notify the
proper authorities. We received no response, nor do we have any other
information about worker standards violations.
It is difficult to prove a negative--that our members are not and
have no pattern of exploiting our workers. However, we believe we can
in this case offer clear evidence of commitment to providing all of our
workers a safe, secure working environment that complies with all laws
and standards of performance.
In 2005, we met with officials from McDonald's to discuss how our
growers could best show we were improving working conditions for our
workers. Based on these discussions with McDonald's and others in the
industry, a program was developed that calls for thorough, direct
auditing by an independent third party to assure that working standards
are met and that workers are receiving the wages to which they are
entitled. This program is the first of its kind in the U.S. produce
industry. Indeed, McDonald's Web site indicates as part of its social
responsibility program that it collaborated with us ``to improve
conditions for farmworkers in the Florida tomato industry.''
The program is Socially Accountable Farm Employers, or SAFE
(www.safeag
employer.org). SAFE is an independent, nonprofit organization that
independently audits and certifies fair, legal farm labor practices in
the agriculture industry. It is a serious program that addresses
important issues such as working conditions and wages. SAFE's
certification signifies that a grower has complied with all employment
laws and regulations such as the Migrant and Seasonal Worker Protection
Act, and that the grower fosters a work environment that is free of
hazard, intimidation, violence and harassment.
wages
Exchange members pay their employees competitive wages. We must, if
we are to have workers each season to plant and harvest the crops.
Otherwise, workers will go elsewhere. Yet each year thousands of
workers return to the region to harvest Florida's tomatoes.
It's important to note that farmworkers are seasonal employees who
often work for multiple employers during the year, so what a worker
might earn on a farm in Immokalee constitutes only part of his or her
wages for the whole year.
Tomato harvesters have the opportunity to earn more than double the
Federal minimum wage of $5.85 and nearly double Florida's $6.79 per
hour. These are legal, competitive and fair wages. Not only has the
minimum wage increased in the past 20 years, the per-bucket rate
workers earn has gone up as well. Yes, sometimes workers' hours are cut
short because the weather is bad and they can't pick the tomatoes, or
there are no tomatoes to be picked. Yet tomato harvesters' wages
potentially can exceed by a considerable margin, the hourly wage for
most workers at fast-food restaurants.
In addition, the growers comply with all withholding of taxes and
payment of FUTA, SUTA and WC contributions according to law.
Based on payroll records our members submitted to the Federal
Government for the last growing season, the average rate was between
$10.50 and $14.86 per hour for tomato harvesters. We believe it may be
higher for the 2007-2008 crop year. Again, these wages will be just a
portion of the annual income for harvesters who move on to other crops
in other regions.
penny-per-pound program
Our Exchange is a voluntary association of tomato growers. As a
group, the growers have made a business decision not to participate in
the penny-per-pound distribution arrangement, as is their right. My
goal today is to explain as clearly as possible the reasons behind that
decision.
Because the Exchange's members have not seen the agreements
announced by Yum! Brands and McDonald's and don't know the specific
details, it is difficult to fully assess the responsibilities,
liabilities and impact of CIW's program. However, from a legal
standpoint, we have been advised that the potential risks of
participating in the penny-per-pound agreement far outweigh any
benefit.
At first blush, the penny-per-pound initiative sounds like a
positive program. Fast-food chains agree to pay an extra penny for each
pound of tomatoes they buy from Florida producers, with that extra
penny distributed to the workers who picked them. Ostensibly, the
growers would serve as the conduit through which the harvesters would
receive the extra payment. But practically--and legally--speaking, the
program is flawed.
For the record, we do not object to the fast-food chains paying
extra to the workers who pick the tomatoes they buy. Our members simply
do not want to be part of that arrangement.
However, we don't believe it is possible to legally and fairly get
the extra payments into the hands of the specific harvesters who pick
the tomatoes bought by the restaurants. The root of the problem is
this: How can the fast-food chains (or any other company that agrees to
the extra penny) accurately identify how many tomatoes come from which
producer and which specific employees picked them? It is not possible,
so how can they ensure the workers who picked their tomatoes are the
ones who receive the additional wages?
A review of the supply chain shows why the Yum! Brands and
McDonald's agreements are unworkable.
During harvest, tomatoes that the workers pick are not individually
identified or labeled by worker or by customer. At the time of harvest,
a tomato picked by a worker could ultimately be purchased by any number
of the producer's customers.
Tomatoes are not made available for commercial channels until after
they have been washed, graded to Federal standards, sized and packed
into cartons in a State and federally licensed packing facility. Some
tomatoes (on average 20-25 percent) are never purchased because they
are ``dumped'' for failing to meet grade or size standards, or have
damage that makes them unfit for sale.
Producers send their harvested and packed tomatoes to their
customers, the repacking and distribution companies that supply the
fast-food chains. A repacking facility receives tomatoes from any
number of producers, and those tomatoes are then co-mingled in large
lots.
We believe the suppliers have agreed to participate in the program
at the insistence of the fast-food chains. McDonald's indicates on its
Web site that, ``[o]ur suppliers will establish a way for the
additional penny per pound to be given to the farmworkers.'' Thus,
these extra-penny agreements are made among several parties: the CIW,
the fast-food chains, and their suppliers.
The critical fact is that no one can identify which worker should
receive an additional payment, nor can the correct payment be
calculated. If the extra-penny funds are distributed among all of the
workers, the fact is some will be paid too much and others won't get
what is due them. This is neither right nor fair.
Additionally, because the extra payments are considered wages, how
will the fast-food chains withhold appropriate amounts? How will they
pay the required employer contributions for FUTA, SUTA and WC, which
can amount to 15 to 20 percent of the wages paid?
The Exchange strongly believes that, because the parties to the
agreements know it is impossible to distribute the correct payment
amounts to the right workers, the growers' participation would open
them up to lawsuits from workers who were knowingly treated unfairly.
Workers also could allege that there is/was a scheme to defraud them,
and each check issued (allegedly in an incorrect amount) could be a
separate bank or wire fraud. This is by definition a RICO case. What's
more, RICO allows plaintiffs to bring additional grounds to allege
fraud-based activities on whatever size ``enterprise'' they seek to
attack.
In addition to the aforementioned concerns related to the penny
distribution, there are additional problems with the program:
We believe if our growers participate they will be placed at a
competitive disadvantage in the marketplace. We believe that ultimately
fast-food chains and other companies will buy tomatoes elsewhere--most
likely Mexico--because the extra penny makes Florida tomatoes more
expensive. If that business shifts offshore, not only will tomato
harvesters be without the extra penny, they will be without jobs. The
tomato industry will go away, and Florida's economy will suffer.
We also are skeptical of any secret agreement that obligates our
growers but prevents them from seeing the details of the agreement. We
also believe it is at the very least improper for the CIW on behalf of
our workers to enter into an agreement that affects the wages we pay
our workers.
In addition, we believe that entering into the CIW's penny-per-
pound program would legally tie the growers with each of the other
parties to the agreement. In effect, our growers, the CIW, the fast-
food chains and their suppliers would be joint employers under the
Migrant and Seasonal Workers Protection Act. Thus, there is a risk to
the growers for the actions taken by the other participants.
The Exchange's members also are concerned that the extra-penny
program constitutes an attempt to restrain trade. The agreements signed
so far appear to join independent companies, the customers and their
suppliers collectively, who in turn have joined forces to demand
growers participate in the Program or risk losing their sales to their
customers.
Finally, it is important to note that the CIW is not licensed or
registered as a collective bargaining agent as required by law, but as
a 501(c)(3) charitable organization whose supporters gain favorable tax
treatment under Federal law. However, we believe that under the cover
of being a social organization hoping to better the life of its
farmworker members, the CIW is in fact a ``labor organization'' as
defined under Florida statutes and that certain employees of the CIW
are ``business agents'' as defined under Florida statutes. CIW is
organized and acts for the purposes of improving its members' hours of
employment, rates of pay, working conditions and grievances relating to
employment. What's more, the CIW is attempting to negotiate wage
increases for tomato workers by threatening a secondary boycott against
the fast-food chains.
Given the fact that the growers are not mandated to participate in
the extra-penny program, and based on the facts as we know them, it
would not be rational, reasonable or in the best interest of the
growers to join the program.
We call upon CIW to take on the task of providing a way for Yum!
Brands and McDonald's to distribute monies to its members and workers
without involving the growers. CIW, as a representative of its members
and workers, should gladly accept the challenge of getting this job
done. If it had figured a way to do this, its member and workers would
have been receiving checks from McDonald's since last November.
Alternatively, like our growers do, McDonald's could contribute to
charities that are helpful to CIW's members and workers, and their
communities such as Catholic Charities, the University of South Florida
Migrant Scholarships, the Redlands Christian Migrant Association and
others.
conclusion
There is no question that harvesting tomatoes is physically
demanding work that most people do not want to do. Florida's tomato
producers are grateful to have a steady workforce that allows us to
provide Americans with a bountiful, nutritious and healthful crop.
We believe that education, improved housing, fair wages and safe
working conditions are comprehensive, impactful and long-term solutions
to improving the lives of farmworkers and their families. We are
working toward those goals and invite others to join us.
We have and continue to work with organizations such as Redlands
Christian Migrant Association, Catholic Charities, University of South
Florida Migrant Scholarships and others so that we can jointly create,
develop and execute meaningful programs relating to health care, child
care, housing and education so that farmworkers and their families have
a real chance to achieve the American Dream.
Thank you for giving us the opportunity to present our position on
these issues.
Senator Sanders. Thank you very much, Mr. Brown.
Roy Reyna is a former tomato picker who now manages a farm
for Grainger Farms in Immokalee, FL. He has spent more than 25
years working in Florida's tomato fields.
Thank you for being with us, Mr. Reyna.
STATEMENT OF ROY REYNA, FARM MANAGER,
IMMOKALEE, FL
Mr. Reyna. Good morning. My name is Roy Reyna. I worked in
the Florida tomato fields for more than 25 years. I started
off, me personally, as a tomato picker, and today I manage a
farm in Immokalee for Grainger Farms.
My Mexican-born father was also a farmworker, and we would
travel as a family to many different areas around the country,
pick fruits, vegetables. I love working the fields because
every day I put tomatoes on the tables of our Nation's
families.
I am here before this committee to share with you my
perspective on working and living conditions of farmworkers in
Immokalee, FL. In my 25-year history of working in Florida's
tomato fields, I have never seen slavery or in any situation
where I have or someone was forced to work against their will.
All, of roughly 90 to 100 percent, of our employees in
Immokalee voluntarily work for us during our season, which runs
from November through May. They choose to work for our company
during the season because we pay them fair wages, offer them
very inexpensive housing, and treat them with dignity and
respect.
Without satisfied workers, no one would pick our tomatoes,
and our farm would be out of business. That is the way it is,
really important for us to create an atmosphere of trust
between us. As a former tomato picker, I completely understand
the importance of earning and maintaining that trust.
As you know, farmwork is very hard. Tomatoes have to be
hand picked. I also recognize that many workers want to be
rewarded with more money if they work harder. For this reason,
we will offer our harvester an incentive by paying them 50
cents per bucket of tomatoes they pick during the harvest.
Their hard work is definitely rewarded, as it is common for our
farm tomato pickers to earn $125 for 5, maybe 6 hours of
picking tomatoes. That is $25 an hour.
If Mother Nature does not cooperate with us on certain
days, we still try to do something with our workers. Again, we
want them to be happy. My personal satisfaction is when a
worker thanks me for giving them the opportunity if we have a
great season or earn money. I know we will help them and their
families in Mexico. Most of our farmworkers send their money
home to Mexico. Some will want to have a permanent life here in
the United States.
As you know, there are a lot of challenges in the community
of Immokalee. I wish this area had better housing and services
for its residents. Our company owns brand-new Government-
inspected housing, so our workers have a clean place to live.
At the end of the day, we want our workers to have the best
possible experience with us so they will return the following
season. It is a mutually beneficial relationship. We need each
other so we can feed our Nation.
I appreciate the opportunity to present our position in
these issues. Thank you.
[The prepared statement of Mr. Reyna follows:]
Prepared Statement of Roy Reyna
introduction
My name is Roy Reyna. I have worked in Florida's tomato fields for
more than 25 years. I started off as a tomato picker and today I work
as a farm manager for Grainger Farms in Immokalee, FL.
My Mexican-born father was also a farmworker and we would travel as
a family to many different areas around the country to pick fruits and
vegetables. I love working in the fields because every day we are
putting American tomatoes on the tables of our Nation's families.
issue
I am here before this committee to share with you my perspective on
the working and living conditions of farmworkers in Immokalee. In my
25-year history of working in Florida's tomato fields, I have never
seen slavery or any situation where someone was forced to work against
their will.
All of our roughly 90 to 100 employees in Immokalee voluntarily
work for us during our season, which runs from November through May.
They choose to work with our company during the season because we pay
them a fair wage, offer very inexpensive housing and treat them with
dignity and respect.
Without satisfied workers, no one would pick our tomatoes and our
farm would be out of business. That's why it's really important for us
to create an atmosphere of trust between us. As a former tomato picker,
I completely understand the importance of earning then maintaining that
trust.
As you know, farmwork is hard work. Tomatoes have to be hand
picked. I also recognize that many workers want to be rewarded with
more money if they work harder. For that reason, we will offer our
harvesters an incentive by paying them 50 cents per bucket of tomatoes
they pick during the harvest.
Their hard work is definitely rewarded, as it is common on our farm
to see a tomato picker earn $125 for 5 hours of picking tomatoes.
That's $25 per hour.
If Mother Nature doesn't cooperate with us on a certain day, we
still try to do something for our workers. Again, we want them to be
happy.
I receive personal satisfaction when my workers thank me for giving
him the opportunity to earn money I know will help him and his family.
Most of our farmworkers send their money home to Mexico while some will
want to have a permanent life here in the United States.
As you know, there are lots of challenges in the community of
Immokalee. I wish the area had better housing and services for its
residents. Our company owns brand new, government-inspected housing so
that our workers have a clean place to live.
At the end of the day, we want our workers to have the best
possible experience with us so they will return the following season.
It's a mutually beneficial relationship. We need each other so we can
feed our Nation.
I appreciate the opportunity to present our position on these
issues.
Senator Sanders. Thank you very much, Mr. Reyna.
Let me begin the questioning on an issue that I think is on
the minds of many Americans. Just coincidentally, as Mr.
Schlosser indicated, when I was in Immokalee, it just so
happened that there was another indictment on slavery. I think,
for the average American in the year 2008, people are
scratching their heads. They are saying how, in God's name, in
this great country in the year 2008 are people still being held
in slavery?
So I want to start with Detective Frost, who has obviously
been involved in this issue. Detective, I want to thank you
very much for the very good work you and your department have
done. I found your testimony to be very compelling, and you
testified without reservation that, ``Human trafficking,
slavery is occurring in the agricultural fields of Florida.''
That was in your statement.
So my question to you is do you believe that there is human
trafficking happening in Florida agriculture as we speak right
now, or is this just an aberration? What is going on there?
Mr. Frost. It is still occurring today. It is probably
occurring most likely right now while we sit here. Workers are
held, forced to work, threatened every day if they don't work.
It is the conditions that they live under, the way they are
forced into a debt servitude process, or they pay weekly for
their housing, for their food, substandard.
At the rate they are paid, it is hard for them to ever get
out of that debt cycle. So they are continually perpetually put
into that situation. Then if they decide to leave or decide
that they want more money from whoever they are working for,
their crew leader or whoever, then there are the threats of
violence.
Senator Sanders. So your point is, this is--there have now
been, what, five or six indictments with regard to slavery.
Mr. Frost. Roughly. Yes, Senator.
Senator Sanders. OK. Your point is it may well be going on
today, as we speak right now?
Mr. Frost. Almost assuredly it is going on right now.
Senator Sanders. Let me also ask you another question. You
stated in your statement that the system, as it is set up right
now, allows larger companies, the growers, to ``remain
willfully blind of any abuses occurring and minimize any
liability.'' Your testimony, as it happens, mirrors the opinion
of Judge K. Michael Moore of the Southern District of Florida
in a slavery case that is quoted in Ms. Bauer's testimony.
Judge Moore wrote, and I quote from Judge Moore, ``Others
at another level in the system of fruit picking at a higher
level are complicit.'' In other words, he was talking about the
growers.
Detective Frost, would you agree with Judge Moore's
sentiment that in these slavery cases there are people higher
up the economic chain who are complicit and who have cause to
benefit financially from what goes on?
Mr. Frost. If they are complicit, they isolate themselves
from what actually is occurring, and now they are benefiting
from what is going on.
Senator Sanders. So the argument that, gee, I don't know
what is going on, from what I am hearing you say, is not
holding a lot of water?
Mr. Frost. No, sir.
Senator Sanders. As a law enforcement professional, do you
believe that we need to change the law to prevent the growers
from shielding themselves from responsibility?
Mr. Frost. We have to do something. I mean, we have to hold
them accountable. This is occurring in their back yard. This is
occurring in our fields. This is occurring in our country.
Senator Sanders. OK, thank you very much.
Let me open that question to other members of the panel. We
will start with Mr. Benitez. Is slavery just an aberration? Is
it the exception to the rule, or are we seeing a climate and a
culture in the industry right now which forces the surrender
situation?
Mr. Benitez. I believe that with the imbalance of power
that exists in the agricultural industry today between the
worker and his boss, the industry allows this type of thing to
flourish.
Another thing that we need to remember when we are talking
here today about the agricultural industry, we are not talking
about small farmers or small companies. They are huge agri-
businesses that control how the worker works. It is absolutely
the exceptions that the agricultural industry enjoys today from
laws that has allowed this problem to grow and to flourish.
Senator Sanders. Thank you.
Mr. Schlosser.
Mr. Schlosser. Yes, I think that the Migrant and Seasonal
Agricultural Worker Protection Act was passed in 1983 in order
to prevent growers from avoiding responsibility for what their
labor contractors were doing. The labor contractors are
essentially the middle managers in agriculture here. If the
middle managers are involved in slavery, you would think that
the chief executives would either know about it or, in some
way, should be held culpable.
Right now, there is a loophole in the Trafficking Victims
Protection Act that makes it more difficult to prosecute
farmers in these slavery cases. I think that loophole should be
closed. I have looked at the war on drugs and how the war on
drugs operates. If there is marijuana grown on a property, that
property can be forfeited or seized under civil or criminal
statutes. I might recommend that farmers face the possible loss
of their land if there are repeated instances of slavery.
I mean, as I said in my testimony, we are not talking about
small fringe operators. In the one case, where the labor
contractor has already served time in a Federal prison for
slavery, by rehiring that person you are sending a message to
the workers that slavery really isn't that big a deal.
Florida has a very long and a very dark history of labor
relations. As recently as the 1950s, African-American men were
arrested on the streets in Florida for vagrancy. They were
fined, and they were put to work in the vegetable fields to pay
off their fine.
So this is a problem that can be solved. Certainly in other
agricultural areas in this country, we are not seeing this sort
of slavery case. But there is a culture right now that is
permitting it and not condemning it, and I think there are
things that Congress can do very simply and easily to end it.
Senator Sanders. Thank you.
Ms. Bauer, is what we have seen in terms of the slavery
cases the exception to the rule, or is there a culture there
now which allows this to go on?
Ms. Bauer. There is clearly a culture, and I think we
should say I echo the comments that have been made before. But
it is clear that these things happen on a continuum, and some
of the cases we are talking about are particularly dramatic
examples. But for every case we hear about, there are dozens,
hundreds of other cases with similar kinds of power
relationships.
I mean, there are cases where--we have represented workers,
for example, who when they are recruited are required to leave
the deed to their home with a recruiter in Guatemala. Now when
I brought a case like that to the Government, they have said,
``Well, that doesn't rise to the level of slavery.'' That is
not bad enough. There were thousands of workers in that
circumstance.
So I think that we have to recognize that there are these
really terrible, dramatic slavery examples, and then there are
kind of less dramatic, but still incredibly oppressive
circumstances that, in effect, amount to forced labor that are
extremely common and, in fact, close to the norm in many
industries.
So what we really need to do is take a very hard look not
just at the law and the enforcement, but what is really
happening in the fields, what is happening in the fields and
what is happening with workers and what is the totality of
circumstances that workers are experiencing because it is--I do
not believe that the American people would be comfortable if
they knew how their food and other industries are operated, how
their food is being produced. I don't think people would be
comfortable with this, and they would not want to eat food that
had been produced in this way.
Senator Sanders. Mr. Brown, I want you to respond in any
way you want. But I did want to just start off with the
question. In your testimony, you indicated that you are opposed
to slavery. You are appalled by slavery. Yet, the truth of the
matter is that Immokalee is not a huge community. There aren't
thousands of growers. It is a fairly small community of
growers.
How could it be that you, who know the industry intimately,
were completely unfamiliar with what was going on in terms of
slavery, was shocked every time that a slavery case came up?
Maybe you might want to comment on Mr. Schlosser's point that
within the industry, a gentleman who was let out of jail for
having served time for slavery was rehired by the industry
again? Could you respond to some of those questions, please?
Mr. Brown. Certainly, Senator. First of all, we are on the
same side on the issue of slavery. We are as opposed to slavery
as you are. We are an extremely progressive industry and moving
forward with the help of McDonald's and a partner in that
process in setting up systems that will allow for third-party
audits entering our farms, interviewing our farmworkers to, in
fact, search out those conditions that you are referring to if
they were occurring.
To date, in 2 years of audits by third-party entities under
the SAFE program, we have not found those cases to exist in our
commercial tomato industry. The case that a member of law
enforcement was referring to earlier was, in fact, an
individual family that was enslaving these folks for the
enrichment of their own enterprise, and they were not involved
in the commercial tomato industry.
We would ask the Sheriff 's Department and the trafficking
program to come forward with us in a joint program to try, in
fact, to educate our industry and to inform our workers of
those conditions that warrant trafficking and slavery in our
industry or in our State, so that we can provide a better-
informed platform to root out any of those circumstances that
would be typical of human trafficking or slavery in our
industry.
Senator Sanders. Again, I just--Immokalee is not a very,
very large community. My guess is, you know quite well all of
the growers. Would that be a fair statement? Do you know those
guys pretty well?
Mr. Brown. I know most of the tomato industry, but there
are numerous other industries in agriculture based in
Immokalee.
Senator Sanders. Right. But it just seems to me, given your
statement that you are appalled by slavery, that you in the
past have not come up with any effort to expose slavery. In
fact, as we have heard, somebody in the industry actually hired
somebody who was freed from jail for slavery charges. What kind
of statement does that make to the community?
Mr. Brown. I believe, if the Senator would explore that
issue further, when that individual was identified as a prior
convicted individual, the individual was released from
employment by that company. They acted in a prudent fashion at
that point.
Senator Sanders. Well, he was identified. I gather it
wasn't much of a secret. The fellow came out of jail.
Mr. Brown. We don't do background checks on every
individual that works on every farm, Senator.
Senator Sanders. OK. Mr. Reyna, did you want to comment on
this issue of slavery?
Mr. Reyna. No. The only thing I can say is I have never
seen it, but it is a shame it is going on in Immokalee.
Senator Sanders. You have never seen it. You have been in
the industry for 25 years, and we have Detective Frost saying
not only has it gone on, he suspects it is going on today. But
that is something that you----
Mr. Reyna. Not at my farm. I mean, not as far as I know of,
and I have never seen it, and it is a shame.
Senator Sanders. Let me move on to another issue, if I
might? That is, Mr. Brown, you stated in your testimony and
just repeated a moment ago, that to ensure that the workers are
treated fairly and paid directly, growers participate in the
SAFE program, which you describe as ``an independent, nonprofit
organization that independently audits and certifies fair,
legal farm labor practices in the agricultural industry.'' Is
that kind of what you said?
Mr. Brown. That is correct, Senator.
Senator Sanders. OK. Well, my staff did a little bit of
quick research here, and maybe you can help me and tell me if I
am wrong. But when we pulled up the names of the board of
directors of SAFE, we found that Mike Stuart, the President of
the Florida Fruit and Vegetable Association, serves on that
board. Is that correct?
Mr. Brown. That is correct, sir.
Senator Sanders. We also found that, according to the Web
site of a Florida Fruit and Vegetable Association, which is
headed by Mr. Stuart, ``they are responsible for helping
growers meet labor needs while keeping costs down.'' That was
on their Internet.
Now, as it happens, there is also another person on the
board of this independent organization. His name is Reggie
Brown.
Mr. Brown. That is correct.
Senator Sanders. Would that be you, sir?
Mr. Brown. Yes, sir.
Senator Sanders. OK. So I think some people might ask if we
have an independent board, independent of the industry, how
does it happen that people like yourself and Mr. Stuart would
be sitting on this ``independent'' board?
Mr. Brown. Senator, in order for an industry to exercise
progressive leadership, sometimes the industry leaders need to
step forward in establishing programs that, in fact, move the
industry forward into the future.
Senator Sanders. Now that is certainly true, but that
doesn't make it an independent agency. In other words, if you
want to--it would seem to me, as having some experience in
organizations, that if the growers wanted to establish an
organization to do A, B, and C in a number of things, that is
one thing. But to call it an independent third-party agency
when it is dominated by the industry itself seems to suggest
that it is not quite independent.
Do other people maybe want to comment on the independence
of that organization? Any other comments on that?
Mr. Schlosser. Well, I think it is interesting that in the
2 years of SAFE, they have not found any instances of
involuntary servitude, but clearly, the involuntary servitude
was going on. The latest case, Senator Sanders, was happening
right in the middle of the town of Immokalee. We walked by the
house where people were being enslaved. So it was present in
clear sight.
I think a truly independent monitoring group would be the
Coalition of Immokalee Workers, and you would think that if
this industry is so concerned about slavery, they would work
closely with the group that has been involved in investigating
six of the seven cases of slavery in Florida in recent years,
which is the coalition.
I also want to make clear that this involuntary servitude
is not being practiced by all of the tomato growers or all of
the tomato farmers, and I think there are farmers who are
honest and decent. But it is unfair to them to have to compete
with farmers who are employing and profiting from slavery, and
that is why this needs to change. I think, again, it can be
changed very easily.
Mr. Brown has talked about some great hardship that would
be imposed by a penny a pound extra for migrants and careful
monitoring by the coalition. This isn't a mandatory
requirement. It is simply farmers, who wish to sell to these
fast food chains, could participate in this program, and I
don't understand why that would upset Mr. Brown so much if
farmers want to participate----
Senator Sanders. We are going to explore that in a few
minutes.
Mr. Schlosser. Yes, great.
Senator Sanders. What I wanted to get to now is another
area of serious differences of opinion, and that is the issue
of wages and how much farmworkers are earning.
In his testimony, Mr. Brown says that, ``Tomato harvesters
have the opportunity''--is the word that he used in his written
testimony--``to earn more than double the Federal minimum
wage.'' He goes on to testify that, ``Tomato harvesters' wages
potentially can exceed by a considerable margin the hourly wage
for most workers at fast food restaurants.''
Then Mr. Brown testified that, ``Based on payroll records
our members submitted to the Federal Government for the last
growing season, the average rate was between $10.50 and $14.86
per hour for tomato harvesters.
For the record, I would say that it sounds to me like this
carefully worded, caveat-laden testimony about what workers are
making stands in contrast with the unqualified assertions Mr.
Brown made in meetings that he and I and others had held
previously. I didn't see all those caveats about ``potential''
and so forth.
Furthermore, let me quote from the Florida Tomato Growers
Exchange own Web site, which says in no uncertain terms, that--
this is on their Web site.
``Florida tomato harvesters earn an average of $12.46
per hour according to 2006-2007 payroll records
required by the Government. Florida tomato harvesters
earn more than double the current Federal minimum wage
of $5.85 per hour and nearly double Florida's minimum
wage of $6.79 per hour.''
And that is the Florida Tomato Growers Exchange Web site.
Ms. Bauer, let me ask you to begin this discussion. In your
testimony, you stated that workers you interviewed claimed that
they didn't make anywhere near as much as what Mr. Brown has
asserted. Based on your interviews with Immokalee workers and
your work in this field, is the problem that the workers that
you have talked to were just very slow workers, not very
competent workers or, in fact, is there another explanation as
to the discrepancy here?
Ms. Bauer. There is clearly another explanation, Senator. I
mean, what the workers that I interviewed told me is consistent
with several decades of experience I have working with
farmworkers and with kind of general practices.
We handle wage and hour cases in our office, and what the
workers described is what we see in wage and hour cases. When
piece-rate workers are paid, their hours are routinely
falsified. That doesn't happen in every setting. That doesn't
happen with every farm or every industry. But it is certainly
what the workers in Immokalee were describing to me. So that
workers on the same crew, working identical hours will have
their pay reflect different numbers of hours, widely disparate
hours, based on how productive they are.
Senator Sanders. You have personally spoken to workers who
have found themselves in this situation?
Ms. Bauer. I have personally represented workers who have
found themselves in that situation.
Senator Sanders. But one might ask, that sounds like on the
surface this is grossly illegal?
Ms. Bauer. It is----
Senator Sanders. So why aren't these workers going before
the law or going to their employer and saying, ``Look, two
workers working the same hours, yet our pay slips are very
different?''
Ms. Bauer. It is clearly illegal. But it is more common
than any of us would like. It is extremely common in the
agricultural industry that workers' pay stubs do not reflect
the actual number of hours that they work. In my written
comments, I express in further detail the kind of tremendous
structural barriers and obstacles a worker will have to
enforcing their rights.
There is a very dramatic decrease in wage and hour
enforcement, in over the past 15 years. As a practical matter,
the worker's ability to sort of have lawyers represent them has
been eviscerated by the LSC restrictions and by lots of other
obstacles that exist. There are just tremendous fears of
retaliation workers have that are wholly warranted by the fact
that if they complain, they will be fired.
Senator Sanders. Well, how easy is it for employers to
falsify the wage and hour records of their employees?
Ms. Bauer. It is very easy without real government
enforcement, which is the situation we find ourselves in now. I
mean, we have a case, an agricultural case which we had an
expert go through the records and say, ``based on these, it is
clear to me that I see patterns of falsification.'' There are
ways in which people who are on the same crew are working these
kind of wildly disparate hours, and this doesn't make sense.
If anybody was coming in and looking at this, they would
know that the people who are riding on the same bus together to
the fields are, in fact, working identical hours. So we
certainly see that, and the problem is that there are such
tremendous obstacles to workers enforcing their rights, that we
really need to take a look at what is happening in kind of a
different approach. Much more enforcement is needed.
Senator Sanders. OK. Let me ask Mr. Benitez this question.
Mr. Benitez, you have heard Mr. Brown's statement today.
Perhaps you are familiar with the Florida Tomato Growers
Exchange own Web site, and they say again--let me repeat this.
``Florida tomato harvesters earn an average of $12.46 per hour
according to 2006-2007 payroll records required by the
Government.''
So my question to you is does that seem right to you? Does
that seem to be the kind of money that people are making, as
you talk to workers and to the degree that you have familiarity
with what the tomato pickers are earning?
Mr. Benitez. To begin with, a case was just resolved, a
complaint like this, with one of the large tomato growers, and
it has to do with wages that weren't paid.
If you were to really earn $12 an hour, you would have to,
as was already mentioned, pick a bucket of tomatoes every 2
minutes and 11 seconds. Senator, you will remember from your
visit to Immokalee, when we went to visit a field, the workers
had arrived there at 7 a.m. They got out of the bus, and they
sat down and waited until the dew was dry before they began
picking.
That day looked like it was going to be a good day for
picking. But many days you arrive at the fields, and it begins
to rain before you can even begin, and you are taken back home
without earning a single penny. Some days, when you are able to
work only 3 or 4 hours, you will return home having earned
maybe $20.
We have seen pay records, paychecks from workers who worked
not 3 or 4 days a week, but 7 days a week, and their paycheck
says that they only worked 18 hours. What usually happens is
that your time is only counted from when you fill up that first
bucket to when you empty the last bucket.
You have to count your tickets when you finish harvesting,
and that takes an hour or maybe longer. There are a lot of
factors that you have to consider when you want to say that
workers can make $12 an hour. Realistically, it is an
impossibility.
Senator Sanders. Thank you.
Mr. Brown, did you want to comment on this?
Mr. Brown. The reality of harvesting tomatoes, the
piecework system, at the 45 to 60 cents a bucket, depending on
the condition of the crop, is, in fact, a way for the worker to
obtain maximum income for his labor. It is an incentive reward
system. If the worker is not working picking tomatoes and is
working at another task on the farms, we are bound by law to
pay $6.79 per hour, which is the Florida minimum wage.
If, in fact, our friends in the CIW are aware of
miscounting or miscrediting of work hours, there are laws that
are enforceable in our State, and I would encourage them to
report those kinds of activities to Wage and Hour and let the
Government who is the, in fact, enforcer of the law become the
regulator of this system.
Senator Sanders. Well, I think you heard from Ms. Bauer
that apparently that is not quite as easy as it looks on the
surface. Give me a rough idea, Mr. Brown--let us get beyond the
hourly wage. At the end of 40 hours a week, what do you figure
the average tomato picker makes? I know it depends on weather,
and it is going to be up and down. Give me a rough guess.
Mr. Brown. The typical harvesting period during the week
will not be 6 or 7 days a week under most growing conditions.
You are probably talking about working 25 to 30 hours as a
harvester. Let us just assume from the standpoint, Senator,
that the average wage is $12. So if you work 30, that is $300
and some--30 hours a week at a $12 wage would be, what, $360 a
week.
There may be other employment on the farm for that same
farmworker, or he may work for other entities during that week
other than the farm he is harvesting tomatoes on for 4 or 5
days and have additional income.
Senator Sanders. That might be difficult because the
assumption is when you get up in the morning, you are going to
go to work picking tomatoes. I gather it is not a Monday,
Wednesday, Friday, 9 o'clock to 4 o'clock, and then you have
time for other work, is there?
Mr. Brown. In some circumstances, if a farm is not
harvesting tomatoes today or tomorrow, and there are times when
we actually do not harvest for 2 or 3 days depending on weather
conditions and planting patterns, those workers will either
work for those farms on other tasks, or those workers may, in
fact, work for other farms in other enterprises. They may very
well be--they could be harvesting citrus for those days.
Senator Sanders. Let me ask you to respond to this again. I
read this earlier. This is not me. It is not Senator Kennedy.
It is not Senator Durbin. This is the St. Petersburg Times, a
paper I have no familiarity with other than I saw this
editorial. This is what they say.
``Is it really going to take an act of Congress to
get Florida's tomato pickers a raise? The men and women
who work the fields in Immokalee earn 45 cents on
average for every 32-pound bucket of tomatoes
harvested. It is a meager wage that has not been raised
in more than 20 years. Yet when a couple of fast food
giants generously agreed to pay workers an added penny
per pound, the Florida Tomato Growers Exchange
sabotaged the deal and has refused to negotiate even
after congressional leaders offered to be
intermediaries.''
The editorial concludes,
``The truth is that Florida's migrant farm laborers
are among the worst-paid workers in the State. They
haven't had a piece-rate increase in a generation, and
the growers exchange wants to keep it that way even
when someone else is willing to foot the bill.''
Do you want to comment on that?
Mr. Brown. Senator, that is one view. Ours is different. We
are, in fact, paying fair wages, and we are treating our
workers fairly. In fact, the Florida Tomato Growers Exchange
does not object to the penny a pound being paid by McDonald's
or Yum! Brands. We simply do not wish to participate in the
distribution of those monies for the legal reasons we have
outlined.
Senator Sanders. We are going to get to that in a second.
But again, please respond. St. Petersburg Times says, ``The
truth is that Florida's migrant farm laborers are among the
worst-paid workers in the State.'' True or not true?
Mr. Brown. Our migrant laborer piece rate, Senator, has
changed in the last 20 years. It has risen from 30 to 35 cents
in the mid-1980s to 45 to 60 cents today. In fact, our
farmworkers that are harvesting tomatoes are making fair wages
that are competitive, and we are blessed with the opportunity
that those workers return by the thousands to our farms every
year to earn those wages to send home to their families in
Mexico.
Senator Sanders. You consider these wages to be fair wages?
Mr. Brown. Yes, sir.
Senator Sanders. OK. Anyone else want to comment on the
``fair wages'' that the workers there are getting?
Mr. Schlosser. I would just say that repeating that
something is a fact doesn't make it a fact. There is a great
deal of involuntary labor. Certainly, Senator, when we were in
Florida and Immokalee and talking to workers away from labor
contractors and growers, we didn't meet anyone who was earning
$12.50 an hour.
Senator Sanders. Yes, Ms. Bauer?
Ms. Bauer. Senator, I just wanted to follow up that not
only are the conditions that workers described unfair, they are
often illegal. The kinds of not being paid for waiting time and
the falsification of hours, these are clearly violations of the
law. I spoke briefly about how the law doesn't protect workers
nearly as well as it should, but even with the minimal
protections that exist, we are seeing really rampant kind of
wage and hour violations.
Senator Sanders. Mr. Benitez.
Mr. Benitez. I just want to clarify that agricultural work,
being a farmworker, is absolutely a full-time job because you
are required to be available to the industry when they need you
to work. If one day you went to look for work and there wasn't
work that day, you still have to be there tomorrow to look for
work. Because if you miss one day looking, then you won't be
offered a job the next.
So I would like to know from Mr. Brown how much turnover
they have, how many workers they have working in the fields now
that were the same workers 20 years ago if the wages are so
good to keep workers?
Senator Sanders. Mr. Brown, did you want to comment on that
question?
Mr. Brown. Certainly, Senator. Because our jobs are
basically entry-level jobs for unskilled workers in the
American economy, over the last 20 years, there have been
thousands of individuals that have come in as farmworkers and
migrated to better jobs and better opportunities. We have
supported thousands of kids in educational programs and
scholarship programs to, in fact, enable them to move up and
achieve the American dream.
Senator Sanders. It seems to me here, Mr. Benitez raised
this issue, you are suggesting--correct me if I am wrong--that
in the course of a week, people may work 20 or 30 hours. Is
that correct?
Mr. Brown. In the task of harvesting tomatoes.
Senator Sanders. Right. Then if they, as I understand what
you said, they have time left over when they are not working in
the fields to earn income doing something else?
Mr. Brown. There are situations where those workers may, in
fact, do other jobs such as pull plastic, stake tomatoes, tie
tomatoes.
Senator Sanders. Mr. Benitez has suggested that, in fact,
people, if they are going to be in the industry, if they are
going to do the work, have to report to work and be available
for work every single day. This is not like a Monday,
Wednesday, Friday situation, where one can plan to be somewhere
else on Tuesday and Thursday. Isn't that true?
Mr. Brown. In some situations, that may be the case where
that worker is basically in the job market every day. In some
situations, we may have farm operations that, in fact, may
release their work crews for a day to work for someone else
when they are not planning to have work available. This is a
very seasonal-related employment system, and the weather and
the circumstances of producing a crop in Mother Nature's
outdoors is challenging at times, Senator.
Senator Sanders. But the key point here is, of course, it
is a seasonal operation, but this is not a 5-day, in most
cases, or 6-day a week job. This is a job where wages are low,
and people have got to be available to do that work and yet
only accumulate 20 or 30 hours, which I think indicates why
overall income is so abysmally low.
I wanted to pick up on another point, and that is something
that confused me, Mr. Brown, and I would like some
clarification. You state in your testimony that labor
contractors are employed by growers?
Mr. Brown. Labor contractors are paid by the grower. In
many cases, they operate as employees of the farm's crew
leaders, but they may very well be licensed labor contractors
under the Federal law.
Senator Sanders. Has this situation changed? What I would
like an answer from you on is, Is your labor contractor an
employee of the farm, or is this an independent contractor?
Mr. Brown. Under our SAFE program, the labor contractor is
an employee of the farm, and the employees are paid directly by
the farm, OK?
Senator Sanders. They are employees of the farm.
Mr. Brown. This is a step forward in the progressive
industry, a step forward in addressing some of the issues of
concern. I believe Ms. Bauer would also acknowledge that if
they were not employed directly by the farm, we would be joint
employers regardless under MSWPA. Am I not correct?
Ms. Bauer. We would certainly acknowledge that.
Mr. Brown. The industry, I think, is fully aware of that
circumstance.
Senator Sanders. Let me ask you this. This is a new
development, yes? How long have these contractors been, in
fact, employees of the growers, and were they previously
independent contractors?
Mr. Brown. The labor contract situation is a system that
has been in place in Florida for decades, and the industry's
progressive step forward in creating SAFE as a mechanism to try
to address these kinds of concerns and to open our companies up
for third-party audits to a firm that we are, in fact, not
participating in these acts and that our workers are, in fact,
being treated fairly and in a positive, constructive working
environment, are not intimidated or harassed, has been part of
the process of our industry exercising leadership.
Senator Sanders. Did anyone else want to comment on Mr.
Brown's statement?
Ms. Bauer.
Ms. Bauer. Well, I would just say that I find that Mr.
Brown's reporting of the wages and the conditions experienced
by farmworkers leads me to wonder about whether he actually has
any information about what farmworkers lives are like in the
real world. I mean, it seems to me that at best one can say
that the comments are disingenuous to say that workers are, in
fact, earning $12 an hour.
It would take very little time for someone out in the field
talking to workers to realize that those statements are simply
not true in the real world.
Senator Sanders. OK. Let me move on to another area. We
have heard a lot about some of the large fast food companies
attempting to address this problem. We have letters in the
public record now from both Yum! and McDonald's talking about
their willingness to pay an extra penny a pound to improve
wages for tomato pickers.
Mr. Brown, let me ask you this. You state in your testimony
that your growers do not want to participate in the penny per
pound program with Yum! and with McDonald's. Is it not true
that two of your member growers voluntarily participated in
this program with Yum! Brands for 2 years?
In other words, you say that they don't want to do it, but
is it, in fact, true that two of your growers did participate
in that program with Yum! for several years?
Mr. Brown. For a period of time, there was some limited
participation in the Yum! Brand effort, and those efforts were
ceased when legal review and legal issues were fully explored
by those companies.
Senator Sanders. Mr. Brown, you indicate now and you have
in your written testimony that you believe that this penny a
pound program is illegal. Is that----
Mr. Brown. We believe involvement in the penny a pound
program in the payrolls of our companies, where we knowingly
know that we do not know and cannot track which worker picked
what tomato--Senator, they do not come with labels in the
field. If we involve ourselves in a program as it is outlined
and has been demanded of us by the quick-serve restaurant
industries and their distributors, we believe we would be in
violation of the law.
Senator Sanders. Mr. Brown, let me ask you this. Is this
legal opinion your idea, or have you gotten legal opinions from
attorneys who know something about this issue?
Mr. Brown. Senator, we have purchased legal opinions from
legal firms in this country to affirm those opinions, yes.
Senator Sanders. Let me just mention to you, Mr. Brown,
that you might be interested to know that according to Mr.
Blum's written testimony to the committee, ``Yum! Brands''--and
this is, as you know, not a small company. This is a huge
corporation that, I gather, has the money to hire expert legal
advice. That he writes that, ``Yum! Brands attorneys are fully
confident that the agreement is legal.''
In addition, this committee has a letter signed by 26 law
professors from around the country, which states in relevant
part, and let me quote you this.
``The ostensible legal concerns of the growers
exchange are utterly without merit. Growers who comply
with the CIW-Yum! and CIW-McDonald agreements will not
violate anti-trust, labor, or racketeering law. The
unfounded assertions of the growers exchange should not
deter any grower from adhering to the CIW agreements,
nor should those assertions deter any fast food company
or other buyer from entering into similar future
agreements with the CIW. The only real----''
I would like you to listen to this. This is according to 26
law professors around the country.
``The only real anti-trust concern would arise if
several growers agree among themselves to not
participate in the CIW-Yum! or CIW-McDonald monitoring
program.''
Furthermore, McDonald's, the largest fast food chain in the
world, sent us a letter, which I will include in the recording,
stating,
``McDonald's USA and our suppliers continue to
support the initiative with CIW to pay an additional
penny per pound for Florida tomatoes and to arrange for
growers to pass the funds directly on to their
workers.''
[The two letters referred to can be found in additional
material.]
Senator Sanders. I gather McDonald's also has the resources
to hire some pretty good lawyers.
Furthermore, in addition to nationally recognized law
firms, Kramer Levin Naftalis & Frankel and Simpson Thacher &
Bartlett have reviewed this agreement and have concluded that,
``Any claim that the terms of the Yum! agreement and McDonald's
agreement violate Section 1 of the Sherman Act appears
meritless.''
Mr. Brown, do you really expect this committee to believe
that the attorneys at Yum!, the largest restaurant company in
the world, and McDonald's, the largest fast food chain in the
world, 26 law professors, and 2 highly regarded law firms with
anti-trust practices are wrong and you are right?
Mr. Brown. Senator, that is one group of legal opinions.
Our legal opinion is different, OK? Our concern, Senator, is
not necessarily totally an anti-trust issue. Our concern
revolves around the potential of a RICO case for knowingly
mispaying workers when we, in fact, have no way of knowing who
picked what tomato or to what volumes of tomatoes they have
picked in marketplace that is very complicated.
Senator Sanders. All I would suggest to you is that when
you are dealing with such huge companies--I mean, these are
multi-billion dollar companies who do not get involved in
activities that they think are illegal. Not when you are Yum!,
not when you are McDonald's. We have some leading law
professors around the country, major law firms who study this
issue, you might want to reconsider the attorneys that you are
currently consulting.
Mr. Brown. I will take your advice under consideration,
Senator.
Senator Sanders. All right. Take seriously what these folks
are saying about the position that you now hold, and I would
hope that, seriously, you will rethink this issue.
Other comments on that?
Mr. Schlosser.
Mr. Schlosser. One of the crucial points here is that no
tomato grower is being forced to enter one of these contracts
with the fast food chains. What Mr. Brown didn't mention in his
testimony is that the tomato growers exchange has threatened
fines of potentially hundreds of thousands, if not millions of
dollars against growers who want to pay their migrants the
extra penny.
So if there are tomato growers who are willing to enter
these agreements with the fast food chains and if there might
be some minute chance of liability, I don't understand why they
should be prevented and threatened with fines for paying an
extra penny that goes to the migrants. I would assume that
freedom of contract should allow them to enter these agreements
with the fast food chains and not face this sort of
retribution.
Senator Sanders. Mr. Benitez, will you say a word about the
agreement that existed for a while?
Mr. Benitez. Of course. The agreement that we had with Yum!
Brands, and that was working, it required the participation of
the supplier, the grower. It didn't cost them any money at all.
The only thing that they had to do was to pass their pay
records to a third party. That was calculated by the third
party, the proportion of the full amount of tomatoes harvested
was the amount that Yum! Brands bought and then compared with
the number of buckets picked by each worker.
Those workers were receiving an extra check representing
that penny per pound based on the number of buckets that they
picked. It was directly from Yum! Brands. This agreement was a
win-win-win situation. The workers earned a higher wage and the
assurance of some basic rights in the code of conduct.
The companies, the growers were winning as well because
with the extra penny, that ensures a more stable workforce and
saves them the cost of having to retrain workers every season.
Yum! Brands in the situation also wins because from the public
they have a better social responsibility. They appear more
socially responsible in front of the public.
Senator Sanders. Is it your view this program could work
effectively if other fast food companies also contributed a
penny a pound?
Mr. Benitez. So when the agricultural industry, when the
committee is willing to take off their fine of their members
and other fast food companies come to the table, I am
absolutely certain that this agreement--that agreements like
this can work.
When more companies enter in and buy more tomatoes, then it
will be not just a percentage of what the workers are earning
that is getting paid the extra penny more per pound, but would
be all of the tomatoes. That is why I suggest to Mr. Brown that
the Florida tomato committee implements, like they have in the
past, a surcharge across the board, a labor surcharge.
Senator Sanders. OK. I just wanted to go back to Mr. Brown.
Just for the record--I think I know the answer, but I wanted
the committee to have this on the record. Isn't it the case
that the Florida Tomato Growers Exchange agreed to impose a
fine of $100,000 for member growers who participated in this
penny a pound program?
Mr. Brown. Senator, the Florida Tomato Growers Exchange is
a voluntary organization owned and operated by its board of
directors and members, and they have chosen to implement
operational policies that standardize procedures and operations
in the industry. As a contractual performance requirement,
there is a fine in that process, yes, sir.
Senator Sanders. That fine is $100,000 for member growers
who participated in this penny a pound program. Is that
accurate?
Mr. Brown. That is correct.
Senator Sanders. OK. Thank you, Mr. Brown.
What I want to do now is simply--let me pick up a point
that I think Mr. Schlosser had raised a moment ago in terms of
this penny a pound business. Mr. Brown, is it true that the
Florida Tomato Growers Exchange voted in 2002 to oppose a
surcharge to cover the cost of phasing out the widely used
pesticide methyl bromide?
Haven't Florida tomato growers also imposed surcharges on
tomatoes for the price of fuel and the wooden pallets you use
to help box your tomatoes? In other words, is this concept of a
surcharge a new idea, or is that something that you have been
doing in the past?
Mr. Brown. The up-charging of certain items in many cases
are services performed for the buyer by the shipping company
that is shipping that product, has been a common business
practice in the industry.
Senator Sanders. So the idea of imposing a surcharge is not
a new concept?
Mr. Brown. The surcharges or up-charges have been added to
the industry over time. However, Senator, the reality of our
marketplace is that in the last 16 years, we have seen imports
into this country jump by 175 percent in the case of fresh
tomatoes, while the domestic industry has grown by less than 10
percent. We are under severe pressure as an industry to be a
least-cost producer of tomatoes, and the addition of any
charges to our product basically make us noncompetitive.
When we are noncompetitive, and our customers go to the
cheap source of product coming out of Mexico, the industry goes
out of business, Senator.
Senator Sanders. Well, believe me, some of us on this
committee are more than aware of what cheap labor abroad has
meant for American workers. But that maybe is a discussion for
another day.
My question, once again, is in the past, have the tomato
growers imposed surcharges?
Mr. Brown. There have been surcharges applied for gassing,
palletization, and cooling and other issues that are universal
in the industry. Yes, sir.
Senator Sanders. OK. Thank you very much.
Let me just, as we come to the end of this hearing, thank
all of the witnesses and the Senators who have been with us. I
happen to think that what we have done today has simply begun
the process, as Senator Kennedy indicated, in investigating the
situation among Florida tomato pickers.
Let me just repeat what Senator Kennedy, who is the
Chairman of this committee, has said because this is the
beginning. This is not the end. We have broken ground on this
issue. We are going to stay on this issue. Most of us on this
committee think that what is going on in Immokalee in terms of
the working conditions there is not something that in the year
2008 should be going on in the United States of America.
And let me say that given the conflicting discussion about
wage rates, we need either a congressional or a GAO audit of
wage and hour records of the growers. As many of you know, the
General Accountability Office here in the Congress is widely
respected for their objective work.
Mr. Brown, would this committee have the cooperation of the
tomato growers with a GAO audit of wages and hour records?
Mr. Brown. Senator, we are a very progressive industry, and
we are willing to open ourselves up to SAFE audits, and we
stand behind our willingness to provide fair and safe working
conditions.
Senator Sanders. I wasn't talking about the SAFE audit of
which you are a member. I was talking about the General
Accountability Office of the U.S. Congress. In other words, we
have heard conflicting testimony today about how much people
are earning, and I think all of us should try to ascertain what
the truth is.
The GAO is a widely respected nonpartisan organization.
Would you be prepared to work with the GAO?
Mr. Brown. Senator, as the growers exchange, we would be
willing to work with the GAO. But there are individual business
decisions of individual business companies. That would be
decisions they would make, and I am not in a position here
today.
Senator Sanders. You are here representing the exchange.
Would the exchange be prepared to work with the GAO so we can
get to the truth? So the next time around, we will be able to
say this is what the GAO determined were the wages in the
industry rather than having conflicting opinions.
Mr. Brown. Yes.
Senator Sanders. So I am hearing you say that the exchange
would be willing to work with the General Accountability
Office?
Mr. Brown. We would be willing to work with them within the
limits of our authority. Yes, sir.
Senator Sanders. Thank you. It seems to me that in
addition, that we are likely to need to expand protections for
workers in a number of ways, including adding coverage of both
the Fair Labor Standards Act and the National Labor Relations
Act to agricultural workers.
It seems to me that the testimony of Detective Frost and
others make it abundantly obvious that we need to make changes
to the Federal trafficking statutes to address the problem of
growers and others who are avoiding prosecution by remaining
willfully blind to the abuses around them. We also need to make
sure that people cannot escape civil liability to workers who
are enslaved, abused, or cheated out of wages.
It seems to me that we should also examine the anti-trust
implications of the Florida Tomato Growers Exchange's
activities. That is an area we will want to look at.
Finally, we need to make sure that slavery, servitude, and
other abuses in the Florida tomato industry continue to receive
the attention--both in and outside of Congress--they deserve,
with the goal of ending this abomination.
Needless to say, slavery is not something which should
exist in America in 2008, and needless to say, the horrendous
wage and working conditions that exist in that industry need to
be significantly improved.
Let me just conclude on that note. I thought this was a
very good start. I want to thank all of the witnesses for being
here. We look forward to continuing this discussion with you.
This meeting is now adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Law Professors
Re: Legality of Tomato Growers' Compliance with Agreements between
Farmworkers and Fast-Food Companies
We are 26 Professors of Law. We specialize in labor law, including
the antitrust dimensions of labor standards.
We write this statement in response to statements by the Florida
Tomato Growers Exchange, which urged its members to refuse to comply
with certain labor standards for Florida farmworkers. Those standards
are set out in two agreements between the Coalition of Immokalee
Workers (CIW) and, respectively, Yum! Brands and McDonald's. The
statements by the Growers Exchange cited concerns that growers'
compliance with the two agreements would be unlawful.
The legal concerns cited by the Growers Exchange are entirely ill-
founded. The agreements between the CIW and the fast-food chains have
been hailed by former President Jimmy Carter, former Secretary of Labor
Robert Reich, former National Labor Relations Board chairman William
Gould, and many other distinguished officials, as well as many eminent
law professors, including Harvard Law Professor Paul Weiler. In
addition, the U.S. Department of Justice has reviewed and approved a
program that is closely analogous to the CIW agreements.
We issue this statement to ensure that the growers' ostensible
legal concerns do not serve as a pretext for obstructing the great
strides that CIW is making on behalf of Florida farmworkers.
First, some background about the agreements that the Growers
Exchange challenges:
In March 2005, Yum! Brands entered into its agreement with CIW, an
organization of Florida farmworkers who pick tomatoes that go into
fast-food products sold by Yum! Yum! owns Taco Bell and other fast-food
chains. The farmworkers do not work directly for Yum!, but instead work
for large farms (``growers'') that sell their tomatoes to Yum!. (That
is, the growers are the ``suppliers'' and Yum! is the ``buyer.'')
The agreement between Yum! and CIW stipulates that growers
supplying Yum! will not engage in slavery and will adhere to other
basic labor standards. Yum! and CIW also agreed that they will jointly
monitor labor conditions to ensure that growers adhere to the
standards. In addition, Yum! agreed to provide an additional penny in
wages to farmworkers for each pound of tomatoes they picked. The
expectation was that growers would cooperate in passing the penny per
pound to the workers, although Yum! would bear the cost.
In April, 2007, McDonald's reached a similar agreement with CIW.
McDonald's also agreed to the creation of a third-party organization
that will monitor the growers' compliance with the labor standards set
out in the McDonald's-CIW agreement. McDonald's and CIW agreed that
they will, at some point in the near future, jointly fashion the
details of the third-party organization.
On May 24, 2007, the Growers Exchange, an organization of large
Florida growers, issued a statement urging its members not to adhere to
labor standards contained in the Yum-CIW and McDonald's-CIW agreements.
The brief statement cited ``concerns over Federal and State laws
relating to antitrust, labor and racketeering.'' According to the
statement, these ``concerns'' related to ``any labor deal that requires
tomato companies to adhere to terms and conditions for its employees
set by unaffiliated organizations.'' The statement provided no details
or legal analysis supporting those concerns. The Growers Exchange
subsequently reiterated the assertions made in the May 24 statement.
In fact, there is nothing illegal about the CIW's agreements with
Yum! and McDonald's, nor is there anything unlawful about the growers'
adherence to the standards in those agreements. There are many similar
codes of conduct establishing labor standards among suppliers of
products to large producers and retailers in many sectors of the
national economy. Compliance with those codes of conduct is monitored
by third-party organizations much like those to which Yum! and
McDonald's have agreed.
Antitrust Law.\1\ Authoritative analysis of antitrust law has been
particularly detailed with respect to recent initiatives in monitoring
the production of garments and footwear--initiatives that are directly
analogous to CIW's agreements with Yum! and McDonald's.
---------------------------------------------------------------------------
\1\ The discussion in this section refers to Federal antitrust law.
Florida State antitrust law follows federal antitrust precedents. See
Fla.Stat.Ann. Sec. 542.32; Levine v. Central Fla. Medical Affiliates,
72 F.3d 1538, 1556 n.20 (11th Cir. 1996).
---------------------------------------------------------------------------
Two such initiatives bear particular note.
The first is the multi-stakeholder organization called the Fair
Labor Association (FLA). In April, 2000, the Nation's highest antitrust
agency--the Antitrust Division of the Department of Justice--formally
vetted the FLA and concluded there was no cause to bring an antitrust
action against it.
The analogy between the FLA and the CIW agreements is very close.
The FLA engages in investigations of factories producing garments and
footwear. It also certifies other third-party organizations to monitor
the factories' compliance with the FLA Code of Conduct. Many large
manufacturers and retailers of garments and footwear (such as Nike and
Reebok) have pledged to buy the products they sell only from factories
that adhere to the FLA Code. Most of these ``manufacturers'' in fact do
not produce the clothing and shoes they sell, but instead enter into
contracts with other corporations owning the factories that actually
produce the goods. The relationship between a manufacturer such as Nike
(the buyer) and the factories (the suppliers) is therefore much the
same as the relationship between McDonald's (the buyer) and the growers
(the suppliers).
Together with human rights organizations, labor rights
organizations, consumer organizations, and universities, the large
garment manufacturers and retailers created the FLA. All of these
groups play a direct, ongoing, controlling role in the organization.
They are, among other things, represented on the policymaking Board of
the FLA. Hence, many ``unaffiliated organizations,'' to use the
language of the Growers Exchange, control the third-party organization
(the FLA) that is responsible for writing the Code of Conduct
applicable to suppliers and for monitoring and enforcing that Code.
When the FLA was created, it sought a ``Business Review Letter''
from the Antitrust Division of the Department of Justice. Upon request,
the Antitrust Division issues such Business Review Letters announcing
its intention to bring or not bring antitrust enforcement actions. In
its letter regarding the FLA, the Antitrust Division concluded that it
had no intention to bring enforcement actions against the FLA. The
letter stated:
[T]he Department of Justice has no current intention to
institute antitrust enforcement action against the
implementation of the [FLA's] Workplace Code of Conduct and
Monitoring Principles. Under the circumstances you have
asserted, it is far from clear that adherence to the Code will
have any adverse effect on the prices paid by United States
consumers of apparel or footwear. Moreover, to the extent that
a firm's ability to advertise compliance with the Code provides
useful purchasing information to a substantial number of
consumers, it is possible that development of the Code and
Monitoring Principles will have a net procompetitive effect.\2\
---------------------------------------------------------------------------
\2\ U.S. Department of Justice, Antitrust Division, Business
Review Letter (April 7, 2000), available at http://www.usdoj.gov/atr/
public/busreview/4513.htm. The business review letter formally refers
to the Apparel Industry Partnership, which subsequently changed its
name to the Fair Labor Association. When the name changed, the facts
relevant to the business review letter remained the same.
The two factors on which the Antitrust Division relied--the de
minimus effect on consumer prices, and the benefits to consumers who
wish to buy products made under decent labor conditions--are equally
applicable to CIW's agreements with Yum! and McDonald's. The labor
costs of picking tomatoes are an infinitesimal percentage of the final
product prices of fast-food chains--lower than one ten-thousandth of 1
percent.\3\ And many consumers wish to know whether the food they eat
was made under conditions of slavery and other inhumane employer
practices. Therefore, under the Antitrust Division's authoritative
analysis, the CIW's agreements raise no antitrust concerns.
---------------------------------------------------------------------------
\3\ Taco Bell estimates that the CIW-Yum agreement will cost
$100,000 per year, constituting an infinitesimal percentage of its
multi-billion dollar annual sales. McDonald's has estimated that the
CIW-McDonald's agreement will raise labor costs by less than 1 million
dollars, which is likewise an infinitesimal percentage of its more than
$20 billion in annual sales.
---------------------------------------------------------------------------
Furthermore, in the 7 years during which the FLA has functioned, no
supplier factory has brought an antitrust lawsuit against the FLA or
its affiliated manufacturers. No supplier factory has brought suit
alleging that compliance with the FLA Code and FLA investigations
violates antitrust law. Nor has any supplier factory that failed to
comply with the FLA Code filed suit alleging an antitrust violation on
the ground that it was denied sales to FLA manufacturers.
The second recent initiative that is noteworthy is the Worker
Rights Consortium (WRC), another monitoring organization in the garment
and footwear sector. The WRC investigates factories on behalf of 180
universities in the United States to ensure that collegiate merchandise
(such as sweatshirts and caps bearing university names and logos) is
made under decent labor conditions. The market structure in this sector
is this: The universities license their names and logos to
manufacturers. In the licenses, the universities contractually require
manufacturers to comply with University Codes of Conduct, which are
modeled on the WRC Code with variations from university to university.
The manufacturers then enter into contracts with supplier factories to
produce merchandise bearing the university name and logo. The
manufacturer requires its supplier factories to comply with the
University Codes of Conduct. Once again, the relationship between the
manufacturer (buyer) and the factories (suppliers) is directly
analogous to the relationship between fast-food companies (buyers) and
the growers (suppliers).
The WRC investigates supplier factories, writes reports, and
recommends corrective action for any violations of the WRC Code of
Conduct and the various Codes of Conduct adopted by the universities.
On the basis of the WRC investigations and reports, the universities
demand that manufacturers come into compliance with the Codes. The
manufacturers, in turn, demand that the supplier factories come into
compliance with the Codes. If factories do not come into compliance,
the universities may cut off contracts (licenses) with the
manufacturers, and manufacturers may cut off contracts with the
factories. (Many of the manufacturers have also adopted the FLA Code
and are therefore committed to compliance and monitoring of their
supplier factories through the FLA protocols as well as the WRC rules.)
The WRC is controlled by three groups: a student organization
called United Students Against Sweatshops (USAS), University
administrators, and an ``Advisory Council'' made up of various experts
and advocates in the area of labor rights. In addition, when
undertaking investigations, the WRC collaborates with a variety of
worker-rights organizations and advocates around the world. Therefore,
to use the terminology of the Growers Exchange, several categories of
``unaffiliated organizations'' formulate and enforce Codes of Conduct
against the supplier factories: the WRC, USAS, the Advisory Council,
the universities, the manufacturers, and various worker-rights
organizations and advocates.
As with the FLA, no supplier factory has brought an antitrust
lawsuit against the WRC, its affiliated universities, or the
manufacturers that source from the factory, nor against other,
compliant factories that benefit from the WRC program. No supplier
factory has brought suit alleging that its compliance with the WRC
Code, the University Codes, and WRC investigations violates antitrust
law. Nor has any supplier factory that failed to comply with the WRC
Code filed suit alleging an antitrust violation on the ground that it
was denied sales to manufacturers. Nor has any manufacturer brought
suit alleging that its compliance or failure to comply with WRC Code or
the University Codes constitutes a violation of antitrust law.
The WRC has recently proposed a new policy that would require
manufacturers to pay supplier factories a price for garments sufficient
to enable supplier factories to pay a ``living wage'' to their workers.
The WRC would monitor compliance with the new policy, just as the WRC
has monitored other standards contained in the University Codes of
Conduct. The proposed living-wage policy has been subject to extensive
antitrust evaluation by the preeminent antitrust lawyer in the Nation--
Mr. Donald I. Baker, the former Chief of Enforcement in the Antitrust
Division of the Department of Justice. In a lengthy opinion letter, Mr.
Baker concludes that the new policy would not violate antitrust
laws.\4\
---------------------------------------------------------------------------
\4\ Mr. Baker's Opinion Letter and supplemental letters are
available at www.workersrights.org.
---------------------------------------------------------------------------
Mr. Baker's conclusion rests principally on the fact that no party
that adopts the new policy--the universities, the manufacturers, or the
factories--is motivated by profit-maximization or revenue-enhancement.
The policy, rather, is motivated by the humanitarian goal of improving
standards for workers in the supplier factories.
Mr. Baker emphasizes that his conclusion is sound, even if the
universities are deemed to be competitors with one another, the
manufacturers are deemed to be competitors with one another, and the
factories are deemed to be competitors with one another in the market
for collegiate merchandise. Apart from having the humanitarian goal of
labor monitoring, the living-wage policy does not require any
``horizontal agreement'' among the universities, among the
manufacturers, or among the factories. Rather, the policy is
implemented by ``vertical agreements.'' That is, the university demands
that its manufacturers pay a sufficient price to factories to ensure
they can pay a living wage, and the manufacturer demands that its
supplier factories in fact pay the wage. These are vertical, not
horizontal, restraints. Vertical restraints of this kind are lawful--
indeed, they are ubiquitous in supplier-buyer contracting. That is,
supplier factories typically compete among themselves to supply each
manufacturer. In order to get the business of a manufacturer, the
supplier factories must abide by the terms demanded by the
manufacturer--such as product price, product quality, delivery time,
and so on. When manufacturers demand that supplier factories adhere to
the living wage, this is just one more term in the vertical contract
between the manufacturer and its suppliers.
Indeed, Mr. Baker emphasizes that if several manufacturers decide
among themselves not to compete for the business of a university on the
ground that the university demands that manufacturers comply with a
Code of Conduct (including the proposed living-wage policy) and submit
to monitoring, then the manufacturers themselves may stand in violation
of antitrust laws. The manufacturers' collective refusal to deal may
constitute a horizontal restraint of trade aimed at securing better
contractual terms from the university--which constitutes a per se
violation of antitrust laws.
By direct analogy, the CIW's agreements do not violate antitrust
law. If McDonald's and Yum! each require their growers to abide by a
Code of Conduct, to cooperate in McDonald's and Yum's payment to
workers of an additional penny per pound of tomatoes picked, and to
submit to monitoring, these are purely vertical agreements between
buyer and supplier and are perfectly legal. Under the CIW agreements,
Yum! and McDonald's do not and need not ``horizontally agree'' between
themselves to demand the same terms from their suppliers. The
conclusion is the same, even if Yum! and McDonald's each require their
suppliers to submit to monitoring by the same third-party
organization--just as Nike and Reebok require their suppliers to submit
to monitoring by the same third-party organization. The agreements
remain purely vertical.
In any event, even if there were horizontal agreements between Yum!
and McDonald's or other buyers of tomatoes, such horizontal agreements
would not violate antitrust laws because they are motivated by
humanitarian concerns, not by revenue-enhancement or profit-
maximization.
And, apart from their humanitarian purpose, the agreements simply
have no discernable anticompetitive effect. No grower is excluded from
negotiating to supply tomatoes to Yum! or McDonald's; and if a grower
agrees to supply tomatoes in conformance with Yum's or McDonald's
respective Codes of Conduct, there is no inefficiency imposed on that
grower or on growers who reject Yum's or McDonald's demands and decline
to supply them with tomatoes. The grower that agrees to deal with Yum!
or McDonald's must simply pass along to its workers the additional
penny per pound provided by Yum! or McDonald's. Hence, there is no
anticompetitive effect, viewed from the standpoint of competition among
the growers.
Nor is there any anticompetitive effect, viewed from the standpoint
of competition among the fast-food companies. Indeed, most fast-food
companies already have codes of conduct to which they demand their
suppliers adhere. These kinds of codes have become ubiquitous in the
global economy. Businesses with brand reputations to protect seek to
ensure that their global suppliers, whether factories, farms, or mines,
do not unduly exploit workers, abuse animals, or damage the
environment. Therefore, the market for fast food is already structured
by the fast-food companies' legitimate efforts to protect their brand
reputation and act like good corporate citizens. In the CIW-Yum and
CIW-McDonald's agreements, CIW and McDonald's have simply announced
that they will add provisions against forced labor to their existing
corporate codes, and will ensure that workers are paid an additional
penny per pound of tomatoes picked. As noted above, the effect on
prices of fast-food products is infinitesimal; and Justice Department
opinions recognize that such codes have a pro-competitive effect, to
the extent they inform consumers about the conditions on farms
supplying their food and enable ethical consumers to satisfy their
preferences for food made by workers who are not so severely exploited.
By contrast, if several growers horizontally agree among themselves
to reject Yum's or McDonald's demands that the growers comply with a
Code of Conduct, cooperate in Yum's and McDonald's payment to workers
of an additional penny per pound of tomatoes picked, and submit to
monitoring, then the growers themselves may violate antitrust laws--
because they are seeking to preclude competition among themselves over
the terms demanded by each buyer. Indeed, the Growers Exchange has
threatened to impose monetary penalties on any of its members who
cooperate with the CIW-Yum or CIW-McDonald's agreements.
Based on these precedents, the growers' ostensible concerns over
antitrust law are flatly mistaken. The only real antitrust concern
would arise if several growers agree among themselves to not
participate in the CIW-Yum or CIW-McDonald's monitoring programs.
Labor Law. The Growers Exchange's ostensible ``concerns'' about
labor law are mystifying. (As with its antitrust concerns, the Growers
Exchange gives no details or analysis of its labor law concerns.) There
are simply no plausible labor law issues raised by the CIW-Yum and CIW-
McDonald's agreements.
It is true that Federal labor law prohibits certain types of
indirect pressure known as secondary boycotts. For example, if a labor
union is seeking higher wages from employer A, the union may not engage
in a strike against employer B (say, a buyer of employer A's products)
to induce employer B to coerce employer A to raise wages; and the union
is, in some circumstances, barred from entering into a contract with B
to cease doing business with A. However, farmworkers are excluded from
the coverage of Federal labor law. They are therefore not bound by
Federal restrictions on secondary activity. And, even if Federal labor
law were applicable to farmworkers, labor law does not prohibit non-
coercive secondary consumer boycotts--that is, the law would not
prohibit CIW from calling a consumer boycott against a buyer of
tomatoes to induce the buyer to adopt a Code of Conduct that is
applicable to tomato growers. But to repeat: farmworkers are exempt
from all Federal labor laws against secondary action or agreements not
to deal. Under Florida State law as well, collective boycott of a party
is only unlawful if those engaging in the boycott act out of malicious
or punitive motive - when, for example, a group of manufacturers agree
among themselves to cease doing business with a certain distributor in
order to increase their own profits or the profits of other
distributors. The CIW agreements, which are motivated by humanitarian
goals, clearly have no malicious or profit-driven purpose.\5\
---------------------------------------------------------------------------
\5\ Margolin v. Morton F. Plant Hospital Ass'n, Inc., 342 So. 2d
1090 (Fla. Dist. Ct. App. 2d Dist. 1977).
---------------------------------------------------------------------------
Racketeering. The Growers Exchange's reference to racketeering is
even more mystifying than its reference to labor law. A party violates
the Federal racketeering law--the Racketeer Influenced and Corrupt
Organizations Act (RICO)--only if the party, in association with
others, commits two or more ``predicate offenses,'' such as kidnapping
or slavery.\6\ CIW, McDonald's, and Yum! have engaged in no such
criminal acts. The concern raised by the Growers Exchange is ironic--
since the CIW-Yum and CIW-McDonald's agreements aim to prevent future
acts of kidnapping and slavery by the growers themselves or by their
agents.
---------------------------------------------------------------------------
\6\ 8 USC Sec. Sec. 1961-1962.
---------------------------------------------------------------------------
In conclusion, the ostensible legal concerns of the Growers
Exchange are utterly without merit. Growers who comply with the CIW-Yum
and CIW-McDonald's agreements will not violate antitrust, labor, or
racketeering law. The unfounded assertions of the Growers Exchange
should not deter any grower from adhering to the CIW agreements. Nor
should those assertions deter any fast-food company or other buyer from
entering into similar future agreements with the CIW.
Sincerely,
David Abraham, Professor of Law, University of Miami School of Law;
James Atleson, Professor of Law, State University of New York at
Buffalo; Mark Barenberg, Professor of Law, Columbia University School
of Law; Linda Bosniak, Professor of Law, Rutgers University School of
Law; Christopher David Ruiz Cameron, Professor of Law, Southwestern Law
School; Roberto Corrada, Professor of Law, University of Denver Sturm
College of Law; Marion Crain, Paul Eaton Professor of Law, University
of North Carolina at Chapel Hill; Kenneth G. Dau-Schmidt, Willard and
Margaret Carr Professor of Law, Indiana University-Bloomington; Cynthia
Estlund, Professor of Law, New York University; Catherine Fisk, Douglas
Blount Maggs Professor of Law, Duke University; Jennifer Gordon,
Associate Professor of Law, Fordham Law School; Seth Harris, Professor
and Director, Labor & Employment Law Programs, New York Law School;
Alan Hyde, Professor and Sidney Reitman Scholar, Rutgers University
School of Law; Karl E. Klare, George J. & Kathleen Waters Matthews,
Distinguished University Professor, Northeastern University; Arthur S.
Leonard, Professor of Law, New York Law School; Carlin Meyer, Professor
of Law, New York Law School; Gary Minda, Professor of Law, Brooklyn Law
School; Peter Pitegoff, Dean, Professor of Law, University of Maine
School of Law; James G. Pope, Professor of Law, Rutgers University
School of Law; Joel Rogers, Professor of Law, University of Wisconsin
Law School; Michael Selmi, Professor of Law, George Washington
University Law School; William H. Simon, Arthur Levitt Professor of
Law, Columbia University School of Law; Emily A. Spieler, Dean, Edwin
Hadley Professor of Law, Northeastern University School of Law; Robert
Steinfeld, Professor of Law and Roger and Karen Jones Faculty Scholar,
State University of New York at Buffalo; Kendall Thomas, Nash Professor
of Law, Columbia University School of Law; Lucy A. Williams, Professor
of Law, Northeastern University School of Law.
[academic affiliation for identification only]
McDonald's USA, LLC,
Oak Brook, IL 60523,
April 11, 2008.
Hon. Edward M. Kennedy,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Bernard Sanders,
U.S. Senate,
Washington, DC 20510.
Dear Senators Kennedy and Sanders: Thank you for the opportunity to
share McDonald's position on Florida tomatoes and our commitment to
social responsibility.
In April 2007, with support from the Carter Center, the Coalition
of Immokalee Workers (CIW) and McDonald's USA, working with our produce
suppliers, announced plans to work together to address wages and
working conditions for the farmworkers who pick Florida tomatoes.
McDonald's USA and our suppliers continue to support the initiative
with CIW to pay an additional penny per pound for Florida tomatoes and
to arrange for growers to pass the funds directly on to their workers.
Despite the response by the growers, McDonald's produce suppliers
continue to look for ways to achieve these important objectives.
McDonald's produce suppliers have also been working directly with
the CIW to finalize a strong code of conduct for Florida tomato
growers. Additionally, discussions are moving forward between our
produce suppliers and the CIW to develop a third-party verification
system of the code of conduct which could be adopted by a broader group
of purchasers.
We respect the CIW's commitment to enhancing conditions for the
workers. All people deserve to be treated with respect. Together with
our produce suppliers, we remain steadfast in our commitment to
improving the wages and working conditions for tomato farmworkers in
Florida.
Sincerely,
J.C. Gonzalez-Mendez,
Senior Vice President,
Chief Supply Chain Officer, North America
[Whereupon, at 12:05 p.m., the hearing was adjourned.]