Business

They broke labor rules. We gave them $8M in farm subsidies and 8,000 foreign workers.

Joe Harper and a foreign visa worker mulch a cornfield using a tractor and tiller at Flying H Farms in Mountain Home in late October. The son of Jeff Harper, Joe is a partner in the business. The farms have a small staff, relying on workers who return each year through the H-2A visa program.
Joe Harper and a foreign visa worker mulch a cornfield using a tractor and tiller at Flying H Farms in Mountain Home in late October. The son of Jeff Harper, Joe is a partner in the business. The farms have a small staff, relying on workers who return each year through the H-2A visa program. jjaszewski@idahostatesman.com

Jeff Harper didn’t grow up in a farming family. It was just his dream to be a farmer. So he moved his family from California, settled in Mountain Home and started Flying H Farms in 1980.

Flying H grows alfalfa, corn, potatoes and other crops on sprawling fields in Elmore, Owyhee and Twin Falls counties. Harper and his sons couldn’t run their farms without the handful of foreign workers they hire each year through the H-2 visa program, he said.

Getting federal approval to bring in Mexican workers on temporary visas comes with some bureaucracy and oversight, like yearly inspections of the housing that Flying H provides workers. But that is “worth it,” Harper said.

“This program really works well for us,” he said. “We tried legal, tried illegal, tried labor contractors, high schoolers … this is the best.”

Flying H Farms has stumbled over the years, though. Federal regulators found a total of 76 labor violations there between 2005 and 2012. The farm was fined $750 and ordered to pay $8,458 in back wages.

In the years since, Flying H has fixed the problems, Harper said. “You lose your rights to utilize these programs if you don’t.”

But few employers actually lose those rights. Some Idaho agriculture businesses with a history of problems have continued to get approval to import workers from other countries through the H-2 program’s two visa types, H-2A and H-2B. Those temporary employees do jobs that are among the most dangerous in the U.S., based on worker injury and death rates. Many businesses also received farm subsidies, which are not contingent upon an employer’s willingness to follow labor laws, wage laws or safety laws.

Several agriculture businesses with one or more fatalities in the past decade currently have federal approval to use foreign workers to fill their jobs, and they have continued to receive monetary benefits through federal farm-aid programs.

Idaho Falls-based Wada Farms had violations in 2010 and 2016. A potato sorter who was cleaning a conveyor belt on a Saturday in March 2010 stepped into a gap between conveyor belts and fell several feet on her head to the concrete floor. She was flown to Eastern Idaho Regional Medical Center, where she died the next morning. Since then, Wada has received nearly $600,000 in subsidies and at least 276 visa workers. It was cited with a serious worker-safety violation last year.

Hamer-based Blaine Larsen Farms had violations in 2009 and 2015, and workers were severely injured in 2015 and 2016, including broken wrists and amputated fingers. The business has been granted approval to import 2,302 workers to its farms since the first violation.

Wada Farms did not respond to messages from the Statesman. Blaine Larsen Farms declined to answer questions.

In the decade or so since regulators have caught about five dozen Idaho employers breaking rules — ranging from unpaid wages to fatal safety lapses — the federal government has given those employers a green light to hire more than 8,000 foreign workers. Those employers also received at least $7.9 million in subsidies.

They and their payments make up a tiny sliver of Idaho’s big and small farms, dairies, forestry companies, beekeepers and ranchers. Last year alone, Idaho farms got $155 million in subsidies, according to the Environmental Working Group, which gathers subsidy records from the U.S. Department of Agriculture and has pushed for reform of subsidy programs.

Some of the employers identified by the Statesman said they learned from their past problems — and told the Statesman how they turned around their operations.

Making a better workplace

Eduardo Juarez Guillen, 32, is one of Flying H’s visa workers. He has returned to Flying H for nine years on an H-2 visa. The season is done now, and he’s anxious to fly home next week to Michoacan and see his wife after eight months apart. They are expecting their first baby.

His job at Flying H is to move irrigation pipes on the fields. It can be hard work, requiring 48 hours a week or more. But, he said, the Harpers treat employees well. They provide housing as required under visa rules — a trailer in Hammett — and a truck they can use to make trips into town for grocery shopping. The money he earns — about $26,000 a year — is “way better” than he makes on the family farm in Mexico.

And he’s been informed of his rights as a worker, with the consulate at home telling him his rights before he leaves, and Flying H giving him a manual of his rights when he arrives.

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Eduardo Juarez Guillen has worked at Flying H Farms in Mountain Home for the past nine years, after spending a few years at other, larger farms in Idaho. He says the work is good — laying irrigation pipes, supervising fellow H-2A visa workers and doing end-of-season tasks like tilling the fields with this tractor. Joe Jaszewski jjaszewski@idahostatesman.com

“There’s a lot of regulation between what you do with these H-2A folks and what you do with domestic labor, and we didn’t always get that right,” Harper explained about the prior violations. “We’d made some mistakes in bookkeeping and classifying employees.”

Harper now is diligent about making sure everything is done according to regulations, he said.

“By no means were we perfect,” he said of the past violations. “But we got that way.”

Into the forest

Alpha Services is a Coeur d’Alene-based tree-planting company that does business all over the U.S.

About 500 employees sued the company in 2005, accusing it of breaking minimum wage, overtime and other labor laws. (The lawsuit was settled in 2006.) Federal records showed labor violations in Idaho from 2005 to 2007, for which it was ordered to pay about $7,000 in back wages.

Around the same time, The Sacramento Bee investigated Idaho forestry companies that were using H-2 workers and found cases of abuse and mistreatment.

“When workers show up, employers give cash advances,” Alpha Services owner Robert Zaharie told the Bee at the time. “Sometimes they leave with the money and never work. We have been more indentured to our workers than they have ever been to us.”

Since then, Zaharie’s company has been granted 2,450 visas under the H-2B program, bringing workers mostly from Guatemala and Mexico. It also is a federally approved labor contractor and has been awarded federal contracts as recently as 2015.

Zaharie told the Statesman this week that the lawsuits — there have been more than one — were an attempt to “legislate from the bench” by asking the courts to require H-2B employers to pay workers’ incoming transportation costs, which wasn’t required at the time.

The company cannot find locals who are willing to do the backbreaking forestry jobs for more than a few hours, according to Juan Garcia, Alpha Services human resources manager.

“We have changed so much, it’s unbelievable,” said Garcia. “Now, what we do to make sure everything is on the up-and-up, first of all, we implemented a new way to keep track of time. We use iPads. We use GPS on the vehicles, to match the time that [workers] said they got to the field. ... And I personally go out and interview each worker to find out if everything is being recorded correctly, and so on, and so on.”

Zaharie characterized those changes as a defensive move, to protect the company from false claims of unpaid wages. He said it’s currently fighting an audit stemming from employees in Oregon saying the company didn’t pay them for hours they worked off the clock.

Zaharie said he’s never been worried that he would lose his ability to participate in the H-2B program. But, he says it’s such a burdensome program that he wouldn’t use it if he could find enough local workers. He described placing ads last year for 300 jobs in Idaho, Washington, Oregon and Montana. Pay ranged from $15.50 to $17.50 an hour and included hotel reimbursements and transportation, “and we got zero applicants out of 300.”

Garcia said he thinks the H-2B program is now “super regulated,” to the extent that foreign workers have more rights than U.S. workers. “Unfortunately, the rules always come around because of people taking advantage of people [or] doing the wrong thing,” he said.

‘Trying to do things correctly’

There have been years of documented abuse, mistreatment and lack of oversight in guest worker programs.

The Government Accountability Office issued a report in 2010, for example, detailing how employees brought to the U.S. on H-2B visas to work in construction, landscaping, forestry, hospitality and for a carnival operator were “targets of fraud and abuse.”

An investigation by BuzzFeed in 2015 found thousands of cases of employees brought to the U.S. to be exploited and mistreated.

“Most of those employers have since been approved to bring in more guest workers,” BuzzFeed reported. “Yet employers rarely face any significant consequences.”

One of the tools the U.S. Department of Labor can use to force visa employers to follow labor laws is “debarment.” Employers can lose their visa privileges for a few years if they break rules: lie on their visa paperwork, make H-2 employees do work outside of the scope of their assigned jobs or commit a “single heinous act showing such flagrant disregard for the law that future compliance ... cannot reasonably be expected.”

But debarments are rare. Only 33 people or businesses in the U.S. are currently debarred from using H-2A workers — out of several thousand H-2A employers. They include a farm in Preston that the Labor Department says failed to respond to an audit request and, as a result, can’t use visa workers until next September.

The GAO in 2015 found that federal agencies charged with protecting workers can “impose remedies” for employers who break the rules. “However, certain limitations hinder the effectiveness of these remedies,” it said. One such hindrance: a two-year statute of limitations on debarment. If employees are too scared to report a violation right away, or if the investigation takes too long, there’s not much hope of punishing bad employers.

“State officials noted that they are only able to develop criminal charges for about 3 percent of all investigated H-visa cases largely due to lack of evidence as some witnesses refuse to testify for fear of deportation,” the GAO found. “Moreover, it is hard for victims of human trafficking to come to prosecutors for help.”

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Jeff Harper, president of Flying H Farms in Mountain Home, has tried a variety of different staffing options for farmworkers, including hiring local help and using temp agencies that bring workers into the area. He says the H-2A visa program — which helps farmers legally bring workers into the U.S. for seasonal work — is the best option. Joe Jaszewski jjaszewski@idahostatesman.com

Harper, the farmer in Mountain Home, credits an Idaho-based organization with helping to ensure he’s doing everything by the book: the Snake River Farmers’ Association, one of the largest H-2A organizers in the country.

The association, based in Heyburn, works with more than 500 farmers in Idaho, Montana and several other states. It does not recruit workers, but it helps employers navigate the H-2A program.

Executive Director Joel Anderson said the association requires its members to stay in compliance with all laws — not only those pertaining to the H-2A program. It doesn’t police its members, he said, but it has told members to leave the association because of concerns about how they were doing business.

Harper noted that with all the political turmoil surrounding the foreign worker program, it’s even more important for farmers who rely on foreign labor to follow the rules.

“Employer access to these temporary workers is absolutely critical in many different industries, many different fields, and many different locations,” Anderson said. “I think H-2A employers overwhelmingly are trying to do things correctly, and it’s a testament to their willingness to submit to all of these regulations, and it’s indicative of how they generally do business.”

Audrey Dutton: 208-377-6448, @audreydutton

How we know

To report this story, the Idaho Statesman cross-referenced and searched records from state and federal agencies to pinpoint businesses and owners who were caught breaking rules and who subsequently were given subsidies or approval to hire foreign workers.

▪  Enforcement data from the U.S. Department of Labor’s Wage and Hour Division showed which employers did not pay workers enough, broke rules that protect migrant and seasonal workers, violated H-2A and H-2B employment regulations, had safety violations or didn’t provide medical leave.

▪  Data from the Occupational Safety and Health Administration included records of safety violations, worker deaths and worker injuries such as amputations that were severe enough to require hospitalization. Injury data were self-reported by employers and only covered a recent two-year period.

▪  Records from the Idaho Department of Labor revealed complaints from Idaho agriculture employees about poor working conditions, such as lack of drinking water or toilets on farms, or unpaid wages. Some of those complaints led to federal investigations.

▪  The Statesman used the Environmental Working Group’s farm subsidy database — which the group builds from U.S. Department of Agriculture records — to tally the subsidies paid to agriculture businesses that had problems, to their owners and to the owners’ other agriculture businesses. (Those business associations were determined from records held by the Idaho Secretary of State.)

▪  Data from the U.S. Department of Labor showed how many H-2A and H-2B visas were approved each year for the agriculture businesses that had problems.

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