 |
 |
 |
 |
Agricultural Hierarchy and the by Guadalupe T. Luna Northern Illinois University Working Paper No. 37 December 1997
About the Author: Guadalupe T. Luna Guadalupe Luna, Esq., is Assistant Professor of Law at Northern Illinois University and specializes in property and voting rights, landlord and tenant issues, and agricultural and immigration law. She has also served as adjunct at the University of Texas' School of Law, and as a lecturer with the University of Minnesota. Her legal experience includes a 4-year assignment as a staff attorney with the Mexican-American Legal Defense and Educational Fund in San Antonio, and as a judicial law clerk with the U.S. Court of Appeals in St. Louis. Luna earned her Bachelor's from the University of Minnesota in 1981 and her J.D. from the University of Minnesota Law School in 1985. She is a member of the Minnesota Bar.
SUGGESTED CITATION Luna, Guadalupe T. Agricultural Hierarchy and the Legal Condition of Chicana/os in the Rural Economy, JSRI Working Paper #37, The Julian Samora Research Institute, Michigan State University, East Lansing, Michigan, 1997. The Julian Samora Research Institute is committed to the generation, transmission, and application of knowledge to serve the needs of Latino communities in the Midwest. To this end, it has organized a number of publication initiatives to facilitate the timely dissemination of current research and information relevant to Latinos. * Research Reports: JSRI's flagship publications for scholars who want a quality publication with more detail than usually allowed in mainstream journals. These are edited and reviewed in-house. Research Reports are selected for their significant contribution to the knowledge base of Latinos. * Working Papers: for scholars who want to share their preliminary findings and obtain feedback from others in Latino studies. Some editing provided by JSRI. * Statistical Briefs/CIFRAS: for the Institute's dissemination of "facts and figures" on Latino issues and conditions. Also designed to address policy questions and to highlight important topics. Occasional Papers: for the dissemination of speeches and papers of value to the Latino community which are not necessarily based on a research project. Examples include historical accounts of people or events, "oral histories," motivational talks, poetry, speeches, and related presentations. Table of Contents
In facilitating food production in the United States, federal legislation and policy has extended a wide array of benefits to the agricultural sector that has long promoted the sectors wealth. As an illustration, income support measures, deficiency payments, loans and access to sophisticated technology promote and sustain the sectors economic status.1 Other liberal federal privileges encompass a vast system of institutionalized infrastructures. The realm of land grant institutions and agricultural extension services compliment the sectors healthy economic status. Offsets from income tax obligations and exemptions from labor and immigration laws accommodating the sectors labor demands further enhance the sectors material wealth.2 More recently, expansion to global markets adds immeasurably to this impressive array of federal benefits.3 Attractive NAFTA protections include phase-in periods that shield certain commodities from competition with similar products in Mexico. The Agreements licensing and copyright protections further ensure protection of the sectors wealth long into the future.4 The justification for the sectors special treatment is attributable to a variety of factors. One key factor purports to allow consumers an "adequate and steady supply of commodities at fair prices."5 Accordingly, sectoral assertions contend its purported "uniqueness" requires acquisition of federal benefits to ensure food production at quality prices.6 Whatever the underlying motivation for privileging the sector, the results of federal farm policy continues to expedite the sectors wealth and economic status since the early origins of the United States.7 Despite broad public support, one key input critical to the production of food remains excluded from economically driven legislation. Benefitting the sector through seasonal and migrant labor that plants, cultivates, and harvests fruit, nuts, and trees, federal legislation is perpetuating the longstanding poverty status of workers.8 Comprised largely of workers of Mexican descent this federal posture promotes erratic terms and deplorable conditions of employment for workers under federal law. The federal regulatory structure thus racializes the treatment of workers with a Mexican background.9 Largely excluded from beneficial federal legislation, agricultural workers consequently, remain marginalized within the framework of agricultural law.10 In the enactment of agricultural legislation, the drafters and promoters of agricultural legislation fail to access alternative interpretations of the law.11 This failure disallows choices representative of a democratic ideal and promotes the omission of agricultural laborers from economically driven measures.12 As an alternative, this essay seeks inclusion of agricultural laborers within the culture of agricultural legislation benefitting the economic standing of the sector. This paper examines alternative interpretations that encompasses the realm of Lat-Crit and Critical Race Theory scholarship and its application to workers within the agricultural hierarchy.13 Representing new forms of legal jurisprudence allows examining legislation written primarily by the dominant population that continues to exclude the agricultural worker. Outside of this perspective, an examination of federal public law and its enrichment of the sector while causing the impoverishment of agricultural laborers remains largely omitted from legal directed study. From the perspective of Critical Race Theory and Lat-Crit Theory, Professor Richard Delgado provides: Unless we recognize the government's power to enrich A, while ignoring B, can cause inequality between A and B just as surely as its power to impoverish B directly we risk repeating the error of the universal story's herdsman whose goats were stolen while he attended to another danger. In contrast to the status quo, the goal of this paper seeks to engage a more productive debate on the agricultural workforce and its position in the agricultural hierarchy. Without alternative interpretations, agricultural legislation reflects skewed renditions of promulgation and application of agricultural law, with further misalignment of democratic principles which render dissimilar treatment of its citizens and as violating constitutional dictates. Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders Both the training and application of law operates under assumptions that in the examination of rules legal analysis is objective and neutral. This position advances that the process of law lacks specific "cultural, political, or class characteristics."14 This assumption further promotes jurisprudence that is critical of those examining law from a perspective on the margins of the legal system. The operating assumption of mainstream jurists is that alternative interpretations are biased and non-objective.15 Within this framework, a Chicana/o perspective is devalued and the experiences particular to the Chicana/o community are commonly excluded from mainstream jurisprudence. A number of authors, however, disclose that this purportedly objective standard neither lacks a perspective nor facilitates a non-biased perspective. In contrast, they assert that what is understood as objective or neutral embraces the "embodiment of a Euro-American, middle-and-upper middle class world."16 The consequences reveal that under the guise of objectivity and neutrality the alleged lack of perspective is thereby empowered.17 Notwithstanding criticism and condemnation from traditional legal scholarship,18 alternative approaches such as Lat-Crit and Critical Race theory are legal models through which law is viewed from the "perspective of its differing and unique perspective on people of color."19 Lat-Crit scholarship seeks to balance skewed interpretations or omission of outsiders in the law.20 In looking at the agricultural agenda from a Lat-Crit perspective, two consequences affecting the Chicana/o laborer surface. The first reveals Chicana/o workers have long struggled to access public programs and public accommodations.21 Although the United States Constitution obligates states to protect all citizens from unequal protection of the law, the Supreme Court, over one hundred years ago, upheld the "separate but equal" doctrine in Plessy v. Ferguson.22 The court, held in favor of a state law that required railroads to segregate their passengers racially. The demise of the doctrine ensued with the court's Brown v. Board of Education decision in 1955.23 Further enactment of anti-discrimination legislation clarified the government's obligation to legal equality. New federal and state equal opportunity legislation followed in the wake of Brown v. Board of Education.24 Although comprised of small increments in demands for equal treatment, public accommodation laws face resistance by those purporting to apply constitutional directives.25 The second consequence generated from existing farmworker legislation, shows farmworker legislation remains primarily remedial.26 Unlike agricultural legislation impacting employer and capital development, farmworker laws fail to shift their economic status of farmworkers. Federal agrarian law promotes their exclusion. In its aggregate it constitutes a regulatory mechanism lacking incentives that could eliminate their disparate treatment. In contrast, Lat-Crit jurisprudence provides: [T]aking into account the racially distributional impacts of a particular federal regulation may be required, in order to avoid perpetuating a racially identifiable set of harms.27 Taking into account the racially distributional impacts of federal regulations on agricultural workers is largely omitted from legal directed commentary. Despite the removal of legal barriers resulting from public accommodations laws, and despite the prohibition of race discrimination in other sectors, race based legal inequality for agricultural laborers remains a fact of life. Without examination of the legal and rhetorical framework the perpetuation of a "racially identifiable set of harms" remains intact. In its exclusion of workers, this posture protects the sector. As defined by law it affords the regulatory structure legitimacy and provides the equivalent of separate and unequal treatment ensuring the marginalized status of Chicana/o workers within the agricultural hierarchy. The racially disparate impact and treatment of rural outsiders, as set forth below, is clear. Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Latinos residing in rural areas have access to less human capital, are underemployed and have lower incomes than their metro counterparts.29 Notwithstanding the growing mechanization of agriculture, the production of food requires extensive manual labor for certain commodities. Workers primarily of Mexican descent remain overrepresented in the sector.30 Precise population figures, nonetheless, remain elusive.31 Presently, reports on labor force participation demonstrate a surplus of labor.32 Factors such as the Special Agricultural Worker Program,33 environmental disasters,34 and the influx of refugees have increased the size of this workforce.35 Yet another potential threat to the workforce is the reinstatement of guestworker programs.36 Presently the agricultural workforce remains in states producing large amounts of fruits and vegetables.37 States comprising the highest numbers of agricultural workers include Michigan, Illinois, New York, Georgia, Florida, North and South Carolina, Texas, Idaho, Washington, Oregon, and California. Reports, studies and historical data, as set forth below, reveal the working conditions of laborers.38 Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Terms and Conditions of Employment Within the culture of agricultural law, several issues narrowly clarify the legal context of rural workers. First, agriculture defines the legal framework.39 The supporting evidence encompasses favorable federal legislation expediting the sectors economic status. Laws, moreover, have ensured sectoral needs for labor are met. Occurring even during times when immigration laws were restrictive,40 exceptions granted the sector provides evidence of federal public law expediting the sectors wealth and status within the agrarian economy. Second, labor laws protecting workers in other labor sectors afford agriculture exceptions from federal obligations. As an illustration, farmworkers are kept from the collective bargaining process; a privilege extended to other workers in the rural economy and other sectors within the United States.41 Agricultural exceptionalism has long excluded agricultural workers from early minimum wage legislation extended to other workers.42 Not until 1966 were fieldworkers allowed coverage.43 Coverage, however, remains limited, and is subject to exceptions within its legislative framework.44 Low wages and underemployment result in the exclusion of farmworkers from most worker's compensation and unemployment insurance plans across the country.45 Even when workers come within the purview of the worker's compensation laws, their mobility and the transitory nature of their employment preclude earning a sufficient amount of credits to permit coverage. Third, legislation promulgated to "protect" rural workers is largely relegated to remedial efforts. Critics of farm policy assert that agricultural workers are subjected to the neglect of federal and/or state agencies.46 Because working conditions for agricultural workers are poorly regulated, remedies accommodate buried exceptions and permit "fine line distinctions"47 which serve to protect the economic status of the sector.48 Farmworker actions for alleviating their circumstances are limited to seeking lost wages,49 and/or trying to access minimum wage and proper housing conditions.50 In their representation of agricultural workers, legal service attorneys cite to violations of MAWPA and the Fair Labor Standards Act "more often than violations of other laws in representing migrant farmworkers in disputes against growers."51 The alleged violations include growers' failing to pay wages for all hours worked; paying workers promptly; paying minimum wage rates; accurately describing working conditions; and meeting minimum housing standards.52 Recouping what is legally obligation is expensive to pursue and legal assistance provided to workers is the subject of retrenchment politics.53 Agricultural laborers, moreover, are charged with the responsibility for social security obligations, and unlike other occupations agricultural workers are not compensated for travel to and from work in distant locations.54 In several instances advocates charge that wages are kept intentionally low by deductions for food brought to the workers by foreman and by allegedly phony social security deductions. In some instances critics charge workers are not paid or are victimized in slave ranch situations by unscrupulous employers.55 In innumerable instances employers, successfully label fieldworkers as independent contractors.56 Defining workers as independent contractors accesses laws that shield employers from liability in the case of abusive labor contractors or in meeting federal/state reporting obligations under minimum wage laws or social security obligations.57 Other evidence of farmworker conditions, includes instances of infrequent sanctions where federal or state health and safety regulations are violated.58 Finally, when workers seek inclusion into the legal framework they encounter extreme resistance with the law used as a tool to curtail their efforts.59 Agricultural legislation questions the rights of fieldworkers to pursue alleged violations of laws and improve terms and conditions of employment.60 During periods of retrenchment the work of legal services undergoes intensive scrutiny with budgets curtailed.61 Consequently farmworkers' marginal status in agricultural law is expedited.62 Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Agricultural Workers and Health Standards Exemption of small farm operations from federal reporting disallows precise identification of the number of incidents occurring on the agricultural enterprise. Nonetheless, federal data identifies agricultural employment as one of the most hazardous occupations in the United States. Exposure to occupational hazards,63 health,64 and safety dangers - along with exposure to pesticides - plague the agricultural laborer.65 They provide supporting evidence of the hazards associated with employment in the sector and further reveal deficient legal protections for agricultural employees.66 The realm of health hazards reveals incidents of tuberculosis, respiratory illnesses, parasitic infections, hunger-related illnesses, musculoskeletal ailments, eye problems, hypertension and diabetes. Women are especially prone to kidney and bladder infections resulting from the lack of sanitation in the fields.67 Other injuries result from pesticide exposure and drift from pesticide applications. Notwithstanding allegedly "strong regulations in the United States, farmworkers are three times more likely to suffer from chemical exposure and seven times more likely to have miscarriages."68 The regulatory process lacks a valid and reliable method of reporting exposures, and has a limited capacity to report pesticide exposure.69 Inadequate reporting of pesticide exposure hinders monitoring exposure rates. Delayed, long-term symptoms present difficulties in pinpointing causation of harms resulting from pesticide exposure.70 Even where pesticide exposure is recognized as dangerous, use of know poisons fails to translate into prohibited use. In 1989, for example, 112 fieldworkers were exposed to Phosdrin, a pesticide used in the instant case to control worms. The incident led to meetings, public health specialist-produced videos, and congressional testimony. Nonetheless, workers are still waiting for stronger regulations and sanctions.71 Workers assert that the Worker Protection Standard, a regulatory framework providing for the training and informing of fieldworkers as to the dangers of pesticides, is not fully enforced and criticize the Environmental Protection Agency, citing the relaxation of federal standards.72 Access to medical care is limited, and barriers to treatment include closing of clinics resulting from financial setbacks and limited health clinic hours. The poverty status of the workers, language barriers, and the general absence of standardized care adversely affect laborers. Further evidence of the poor working conditions of agricultural workers consists of child labor in agricultural fields. Federal law permits children to work in agriculture at younger ages, than in other industries and children thus are exposed to the hazards of the enterprise.73 While eating lunch with other workers, a tractor spraying an adjoining row contaminated Joe Alaniz, age 14, with "sticky green stuff." The "sticky green stuff got on our hands and we didn't have any water to wash them. And nobody was getting gloves."74 The failure of state and federal agencies to adequately enforce laws protecting health and working conditions of farmworkers extends beyond mere neglect. Farmworker advocates assert that enforcement agencies and agricultural employers share a tacit understanding that a token administration of laws are applied.75 The ability of growers to evade legal obligations required of other employers has contributed, in large measure, to the underemployment and impoverishment of fieldworkers. Social and economic analysis of the agricultural framework and attendant laws facilitating food production in the country demonstrate a direct relationship between agricultural exceptionalism and farmworker poverty. Overall these strategies exhaust civil rights efforts, stymie unionization, and establish a distinct culture within agricultural law. In summary, the conditions of fieldworkers remain materially dismal. At the same time the sector accrues a subsidy with the support of a federal structure expediting disparate and unequal treatment of agricultural workers. Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Agricultural Workers and the Global Arena The North American Free Trade Agreement (NAFTA), in expanding the agricultural sector creates the world's largest agricultural marketplace. Contrary to popular assumptions however, NAFTA did not comprise the first international agreement impacting agricultural workers. Determinant events during the past several decades include exemptions from immigration laws, the Bracero Program (which facilitated guest workers from Mexico into the United States), and the establishment of the maquila industry eased the unemployment of bracero workers. Other key events involved preparations between the two countries to expedite a free trade agreement. Mexico's accession to the General Agreement on Tariffs and Trade, the 1987 Bilateral Framework Agreement on Trade and Investment between the U.S. and Mexico, set the framework for a free trade agreement.76 The former led to the reduction of tariffs and the elimination of several non-tariff barriers and, in the process, facilitated export opportunities for agricultural products into Mexico.77 The latter actively improved trade and investment between the two countries. Both governments also advanced unilateral steps to liberalize trade. For example, task forces from the U.S. Department of Agriculture and Mexico's Secretaria de Agricultura y Recursos Hidraulicos laid the groundwork for negotiations on NAFTA. In preparation for the NAFTA,78 its drafters successfully reduced, and even eliminated, barriers to agricultural trade.79 As an agreement premised on federal authority, the distributional effects of agricultural law to those on the bottom of the agricultural ladder cannot be ignored. Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes North American Free Trade Agreement The Agreement and its implementing regulations provide for the full phased elimination of import tariffs and the elimination or fullest possible reduction of non-tariff trade barriers.80 Some examples include import quotas, licensing, and removing technical barriers to trade.81 Additionally, agriculture's access to global markets accrues benefits by way of intellectual copyright laws and licensing agreements provided under the Agreement.82 Eliminating tariffs and other barriers to trade provides agriculture free access to a growing Mexican market and facilitates the world's largest agricultural marketplace. Only after involving labor's participation did NAFTA drafters include supplemental agreements relative to labor and migrant workers.83 The benefits, nonetheless, fail to include long-term structural changes in the working conditions of workers for many reasons. The first shows that the role of agricultural workers is limited principally to the labor sector. Second, the agreement recognizes open borders specific to the free flow of goods and capital yet disallows equal treatment of workers.84 Third, the agreements' Supplemental provision on Labor is without meaningful standards applicable and unique to agricultural labor. Punitive measures against violations of workers' rights, whether domestic or international, intentional or unintentional, are not provided.85 The Supplement also purports "to promote, to the maximum extent possible," certain "labor principles."86 Even within this construct, principles are explicitly limited in that they apply conditionally in that they do "not establish common minimum standards for domestic law."87 Explicit and precise standards and practical definitions are lacking a protective regulatory and implementing mechanism for workers. NAFTA's adjudicatory procedures emphasize this approach. The agreements implementing regulations establish an informal dispute mechanism comprised of commissions to serve as "impartial and independent tribunals to review, consult, examine, reconvene and file complaints."88 Proponents of informal dispute mechanisms maintain that they are more beneficial to the disadvantaged than traditional and more formal methods of resolving disputes. Critics further establish that informal and formal dispute mechanisms fail to protect workers and alleviate inequality within the law.89 Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Agricultural Law and Policy Alternatives The granting of an "unconditional, substantive, and enduring [federal] benefit to a select few" without an examination of its distributional effects on those at the bottom of the socioeconomic ladder discourages equality.90 Within the realm of agricultural law and policy, the status of workers is left primarily within the context of labor law to the exclusion of capital and improving the economic status of workers. Given the range of legal considerations and power relations determining the agricultural agenda, the focus on labor is partial and ensures the workforce leads a marginal existence.91 Consequently, federal public law, grants "unconditional, substantive, and enduring federal benefits" to a "select few", and discourages equality within agricultural law for agricultural laborers. The cumulative historical treatment of agricultural workers reveals they persistently fail to enjoy the benefits of agricultural programs or the progress of American agriculture. Today the impact of agricultural law is clear according to the Census of Agriculture less than 21,000 Chicano farm operators out of a national total of 12.4 million farm operators exist. In total, they represent only 1.7% of all farm operators, while constituting 9% of the nation's population.92 Their under-representation is even more stark given the historical and contemporary ties Mexicans have had to the land. Their historical presence in agriculture has long benefitted the United States. Before the United States annexed former Mexican territory, Mexican farmers sustained a self-sufficient economy. They planted, cultivated, and harvested perishable and non-perishable commodities such as corn, beans, melons, watermelons, barley, and other food and fiber.93 Individuals of Mexican descent, moreover, have remained in the agricultural industry long facilitating the production of food in the United States.94 Expediting the sectors economic standing, long established federal agricultural law and policy has extended an array of federal programs, legislation, and accommodating legal structures. This essay urges re-examination of the strategic value of continuing this conflict in policy. It stems from the conviction that any viable and sustainable reform within agricultural policy must take the workforce into consideration. Finally, its goal urges federal public law into considering including Chicana/os access to farm ownership by including Chicana/o laborers within the agricultural regulatory process.95 This essay encourages Chicana/o farm ownership through the establishment of land trusts.96 Land trusts are accomplished when a landowner transfers property to a trustee or appoints himself as the trustee of the property. Opening federal property for farmworker land trusts would achieve a small measure of equality for Chicana/os seeking to retain their agricultural heritage. Land trusts would permit a safety net, encouraging viability of the enterprise. Other benefits could assist independent farm operators unable as individuals to conduct research and experimentation. Facilitating land trusts would permit success of the enterprise in instances outside the control of the operator. For example, variables specific to the environment including droughts, freezes, and other environmental disasters have caused economic disparage to some owner-operators. Through the use of a land trust, operators would be ensured in maintaining a fair income. Agricultural legislation has encouraged long-standing transformative costs. In the aggregate it has strongly influenced the physical size and structures of farming operations in the United States. Consequently, it ensures a rapidly diminished farm sector for small or moderate sized operations and provides inadequate opportunities for new entrants. The aspect of this federal treatment shifts wealth to the larger enterprise while it escalates losses of family ownership of the farming enterprise.97 Prohibitive capital costs, moreover, fail to draw newer entrants into the sector.98 Additionally, once in the sector, farmers of color express concerns that United States Department of Agriculture officials fail to treat them in the same ways as those of the dominant population.99 These issues raise troubling questions as to how land and other natural assets should be owned and distributed, and who should be allowed to farm.100 Within the realm of accelerated global restructuring, new and additional challenges are raised with special emphasis on placing potential entrants into the farming sector.101 In considering the race and class of owner operators in the agricultural sector, the issue becomes critical; statistics revealing farm ownership largely nonexistent for Chicana and Chicano laborers. Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes Landownership has long been a "deep-seated personal goal"102 yet in producing food, federal farm programs expedite capital-intensive production methods.103 Consequently, the federal regulatory structure continues to transform the rural landscape and its attendant structures.104 The present regulatory structure, moreover, fails to encourage farm ownership for the Chicana/o population.105 Chicana/os seek land ownership and studies demonstrate their active participation with alternative methods of agriculture.106 At the same time, preserving farming as a way of life is an established goal in the United States.107 Land trusts would permit Chicana/o ownership, advance concepts of equal treatment, and expedite their inclusion into the agricultural agenda.108 Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes 1 Agricultural programs are those established or authorized in large measure by federal legislation. See for example the Agricultural Act of 1949, 7 U.S.C.A. § 1421, et. seq., the Consolidated Farm and Rural Development Act, 7 U.S.C. § 1921 et. seq., the Agricultural Adjustment Act of 1938, 7 U.S.C. § 1281 et. seq., the Soil Conservation Act; the Domestic Allotment Assistance Act; the Food Security Act of 1981. 2 These exemptions comprise the doctrine of agricultural exceptionalism. See Ernesto Galarza, Merchants of Labor, The Mexican Bracero Story, 106 (1964). Galarza references Carey McWilliams' "Great Exception" model in characterizing agribusiness as exceptions to the "common principles of social legislation and "the basic tents of free enterprise." In contrast agriculture has succeeded in generating exceptions from federal laws required of other sectors. By way of illustration, New Deal legislation promulgated to ensure the economic viability of the sector escaped application to agricultural workers with officials disallowing "interference" on behalf of farm laborers. See generally, Dwight MacDonald, Henry Wallace: The Man and the Myth (2d. ed. 1947). Had the legal framework recognized the illegality of disparate treatment prospective legislation impacting the sectors would have had to reconcile the legal consequences of excluding farm laborers with economic legislation benefitting the sector. 3 NAFTA for example is expected to boost U.S. total agricultural exports by an expected $2-2.5 billion dollars. Fed. News Service, NAFTA White Briefing, Moderator, Doris Matsui, July 27, 1993. 4 After much contentious debate, the governments of the United States, Mexico, and Canada, entered into the North American Free Trade Agreement, on Dec. 17, 1993. North American Free Trade Agreement, Pub.L. No. 103-102, 107 Stat. 2057 (1993) (entered into force Jan. 1, 1994). The focus of this essay is on Mexico-United States relations. 5 7 U.S.C. Sec. 1282 (1988). 6 Donald B. Pedersen, Introduction to the Agricultural Law Symposium, 23 U.C.-Davis L. Rev. 401 (1990). U.S. agricultural legislation is based on the "concept of agriculture's uniqueness" responding to a set of ideas known as "agrarianism or agricultural fundamentalism, or the agricultural creed." The agricultural creed translates into the following:
7 Professor Jim Chen identifies the United States Constitution as the first agricultural law benefitting rural landowners. See Jim Chen, The American Ideology, 48 Vanderbilt L. Rev. 809 (1995). The size of the sector comprises approximately one-fifth of the gross national product is telling. The sectors position in the economy equals $85.6 billion. When the sectors effects are added onto other sectors of the economy such as in manufacturing, transportation and food processing, the contribution to the gross domestic product totals $6 trillion. See generally, U.S. General Accounting Office, GAO/RCED-95-104FS, U.S. Agriculture: Status of the Farm Sector, 6-7 (1995). When expanded definitions of the farm sector are included such as fertilizer, seeds, and machinery and outputs channeling into other sectors of the economy, totals represent $1.1 trillion. Id. 8 As defined in law, a seasonal worker is "an individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence" 29 U.S.C. § 1802 (10)(A) (1988). A "migrant or agricultural worker means an individual employed for agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence. 29 U.S.C. § 1802(8)(A)(1988). Notwithstanding definitional demarcations fieldworkers can occupy both categories. Workers of Mexican background also meet sectoral labor requirements in the food processing industry and in other related stages of the agricultural input sector. See generally, Philip L. Martin, et. al., Immigration and the Changing Face of Rural America: Focus On the Midwestern States, Julian Samora Research Institute Occasional Paper No. 20 (1996). 9 The terms Chicana/Chicano and Mexicans, reference individuals of Mexican descent residing in the United States. Mexican nationals identifies citizens of Mexico. The terms "Latina/Latino" refers to Puerto Ricans, Cubans, and those from Central and South America. The terms are used interchangeably with an "emphasis on self-designations." Genaro M. Padilla, My History Not Yours (1993). Other authors employ alternative designators. See, e.g., Yvonne M. Cherena Pacheco, Latino Surnames: Forms and Informal Forces in the United States Affecting the Retention and Use of the Maternal Surname, 18 T. Marshall L. Rev. 1 (1982); Ana Castillo, Massacre of the Dreamers (1994) (Xicanisma). 10 Outside the realm of legal commentary, the working conditions of agricultural workers is well documented. See, e.g., Ernesto Galarza, Workers in the Fields, Spiders in the House (19xx). For a review of Michigan farm laborers, see generally, Refugio I. Rochín, et. al., Migrant and Seasonal Workers In Michigan's Agriculture: A Study of Their Contributions, Characteristics, Needs and Services, Julian Samora Research Institute Research Report 1 (1991). 11 The sector is comprised primarily of individuals of the dominant population. Reference, U.S. Department of Agriculture, Farm Finance: The Number of New Farmers Declining (1993); U.S. Bureau of the Census, 1992 Census of Agriculture, U.S. Data Characteristics of Operator and Type Operated By Black and Other Races, 1992, 1987, and 1982 (1995). In this paper the term "dominant population" and "Euro-Americans" reference non-Chicana/o individuals. For a discussion on "White persons" in the law see In Re Camille, 6 F. 256 (1880). 12 See Richard Delgado, The Imperial Scholar: Reflections On A Review of Civil Rights Literature, 132 U. Pa. L. Rev. 561 (1984). 13 For background information on Lat-Crit theory, see generally, Francisco Valdes, Foreword: Latina/o Ethnicities, Critical Race Theory and Post-Identity Politics in Postmodern Culture: From Practices to Possibilities, 9 La Raza L.J. 1 (1996). Critical Race Theory similarly posits law should be examined as it applies to people of color. See for example, Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Michigan L. Rev. 2320 (1989) (exclusion of people of color from jurisprudential discourse); Charles R. Lawrence, III, The Id, The Ego and Equal Protection: Reckoning With Unconscious Racism, 1990 Duke L.J. 431 (1990); Robert A. Williams, Jr., The Algebra of Federal Indian Law, The Hard Trial of De Colonizing and Americanizing the White Man's Indian Jurisprudence, 1986 Wis. L. Rev. 219 (1986). 14 See generally, Kimberle Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 4 S. Cal. Rev. L. and Women's Stud., 33 (1994). 15 See generally, Daniel A. Faber and Suzanne Sherry, The 200,000 Cards of Dimitri Yurasov: Further Reflections on Scholarship and Truth, 46 Stan. L. Rev. 647 (1994). 16 Id. 17 See generally, Leslie G. Espinoza, Masks and Other Disguises: Exposing Legal Academia, 103 Harv. L. Rev. 1878 (1990). 18 Kimberle Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, supra note*, at 33. 19 See, e.g., Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320 (1989) (term "outsider" used to avoid term "minority;" the term "minority" contradicts "the numerical significance of the constituencies typically excluded from jurisprudential discourse"); Philip D. Ortego, The Chicano Renaissance, in La Causa Chicana, The Movement for Justice, 53 (ed. Margaret M. Mangold 1971/1972). 20 See, e.g., Terrell Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824 (Tex. Civ. App. 1944) (access to public swimming pool); the franchise through the elimination of poll taxes and literacy tests and assurance of minimally fair representation. See, e.g., White v. Register, 412 U.S. 755 (1973); Juan Gomez Quinones, Chicano Politics: Reality and Promise, 1940-1990 (1990); John Staples, Chicano Revolt in a Texas Town (1974). 21 Plessy v. Ferguson, 163 U.S. 537 (1896). 22 Brown v. Board. of Education, 163 U.S. 537 (1954). See also Independent School District v. Salvatierra, 33 S.W.2d 790 (Tex. Civ. App. 1930), cert. denied,, 284 U.S. 580 (1931). 23 See for example, the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (1988). The Act originally enacted as Title VIII of the Civil Rights Act of 1968 was expanded by the Fair Housing Amendments Act of 1988. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. (1976) barred discriminatory acts and practices by private employers. 24 See Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Andarand Constructors, Inc. v. Pena, 63 L.W. 4523 (1995). See also the anti-affirmative rhetoric, ideology, and legislation that is eliminating affirmative action from the public sector in California. See generally, Rick Orlov, Wilson Axes Affirmative Action Programs; Governor Abolishes 150 Advisory Boards, L.A. Daily News, June 2, 1995. 25 See generally, Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.C.A. §§ 1801-1872, 1803(a)(1) [hereinafter MAWPA]. 26 Gerald Torres, Race, Class, Environmental Regulation, Introduction: Understanding Environmental Racism, 63 U. Colo. L. Rev. 839, 841 (1992). Torres further contends that "once a racially disparate impact is made clear, pleading ignorance is no defense." 27 Dwight MacDonald, Henry Wallace, The Man And The Myth, 47 (2d. ed. 1947) (references to agricultural workers as "agricultural underdogs"). 28 M. Leif Jensen and Marta Tienda, Nonmetropolitan Minority Families in the United States: Trends In Racial and Ethnic Economic Stratification, 1959-1986, 54 Rural Soc. 509 (1989); see also, Refugio I. Rochín, Hispanic Americans in the Rural Economy: Conditions, Issues, Probable Future Adjustments, National Rural Studies Comm. 62 (1992); John R. Weeks and Roberto Ham-Chande, Demographic Dynamics of the U.S.-Mexico Border (1992); Rogelio Saens and John K. Thomas, Minority Poverty in Nonmetropolitan Texas, 56 Rural Soc. 204 (1991); U.S. General Accounting Office, GAO/RCED-93-40FS, Rural Development Profile of Rural Areas (1993) ("Many of the poorest nonmetro counties are located where populations contain a high percentage of racial minorities"); General Accounting Office, GAO/RCED-94-165, Rural Development: Patchwork of Federal Programs Needs To Be Reappraised (1994). 29 U.S. Department of the Census, The Hispanic Population of the U.S. Southwest Borderland, c3.196: P-23/17 (1992). Undocumented workers, also employed in the sector, raises a presumption by agricultural employers that they will not complain and/or notify immigration officials because of the threat of deportation. See generally, Harry Bernstein, Growers Still Addicted To Foreign Workers, L.A. Times, Oct. 2, 1995. Workers are characterized as "illegal aliens" because of their presumed unlawful immigration status. This includes individuals entering the United States with documentation, but thereafter overextending their stay violate the terms of their initial entry and thereafter lapse into undocumented status. The term "illegal alien" should encompass only those individuals determined by the Immigration and naturalization Service to have entered the Untied States illegally and are in deportation status. See generally, National Immigration Law Center, INS Misconduct (1991). The following authorities provide specifics on the agricultural workforce. Dennis N. Valdes, Al Norte, Agricultural Workers In The Great Lakes Region, 1917-1970 (1991); Linda C. Madjka and Theo Madjka, Farm Workers, Agribusiness and the State (1982); James A. Duffield and Shannon Hamm, Linkages In Agricultural Labor and Investment, 2 Mexico Trade and Law Reporter (1992). 30 See, e.g., Commission on Agricultural Workers, Report of the Commission on Agricultural Workers (1992); U.S. Department of Census: Agricultural Census (1990). Critics charge the census fails to take place during times when workers return to their home state. As a result, it is difficult to obtain a more precise enumeration. Author's interview with Motivation, Education and Training, Inc., Austin, Texas (1992). 31 See generally, Commission on Agricultural Workers, Report of the Commission on Agricultural Workers (1992). 32 The Special Agricultural Workers Provision of the Immigration Reform Control Act of 1986 provided over 1.3 million agricultural workers to this workforce. See 8 U.S.C. § 1101 et. seq. 33 Droughts, freezes, and floods have forced thousands of migrant farmworkers out of employment. For example, sub-freezing temperatures in 1989 for 36 hours stopped Texas's remaining $60 million citrus harvest and displaced an estimated 15,000 to 25,000 seasonal agricultural workers. Comprehensive Training, supra note*, at 7; see also, Laurie Goering, Staying Above Water, Flood Dries Up Migrant Workers Jobs, Chicago Tribune July 16, 1993, at A1 (flooding of Midwest). 34 See, e.g., Bertelsen v. Agricultural Labor Relations Board, United Farm Workers, AFL-CIO, 23 Cal. App. 4th 759, 29 Cal.Rptr.2d 204 (1994). 35 The agricultural workforce is characterized as a potentially easily manipulated and exploitable workforce by agricultural employers. See, e.g., Dennis Valdes, Al Norte: Agricultural Workers in the Great Lakes Region, 1917-1970 (1991); Ernesto Galarza, Merchants of Labor, The Mexican Bracero Story (1964) David Judson, Farr Says Guest Worker Program Not Needed, Gannett News Serv., April 18, 1996 (review of proposed legislation introducing a return of guest workers in meeting sectoral labor needs). The proposed legislation seeks a guest worker program to meet sectoral labor demands. A guest worker program is a return to the Bracero Program where the governments of the United States and Mexico permitted the entry of laborers from Mexico to meet the demands of labor during World War II. See 56 Stat. 1759 (1942). The Bracero Program received statutory authorization in 1951. 65 Stat. 119 (1957). 36 The Tomas Rivera Center, Migrant Enumeration, Austin, Texas, (1993). 37 The drama of the working conditions of agricultural workers in legal commentary is relatively sparse. For a general overview see Patrick M. Anderson, The Agricultural Employee Exemption From the Fair Labor Standards Act of 1938, 12 Hamline L. Rev. 649 (1989); T.E. Murphy, End to American "Serfdom"- The Need for Farm Labor Legislation, 25 Lab. L.J. 85 (1974); Howard S. Scher and Robert S. Catz, Farmworker Litigation Under the Fair Labor Standards Act: Establishing Joint Employer Liability and Related Problems, 10 Harv. Civ. Rts. L. Rev. 575 (1975); Ellen S. Greenstone, Comment, Farmworkers In Jeopardy: OSHA, EPA, and The Pesticide Hazard, 5 Ecology L.Q. 69 (1975); Hal H. Kantor, Florida's Forgotten People: The Migrant Farmworkers, 23 U. Fla. L. Rev. 756 (1971); Viviana Patie, Migrant Farm Worker Advocacy: Empowering The Invisible Laborer, 522 Harv. C.R.-C.L.L. Rev. 45 (1987). For an historical perspective see, e.g., Dennis N. Valdés, Al Norte: Agricultural Workers In The Great Lakes Region, 1917-1970 (1991); Dennis N. Valdes, Machine Politics In California Agriculture, 1945-1990's, 53 Pac. Hist. Rev. 203 (1994). 38 For example, the Agricultural Stabilization and Conservation Service and elected county committee members or appointed state committee members are composed of public agricultural employees. Committee members serving out their elected positions determine which individual farmers qualify for agricultural subsidies. See, 7 C.F.R. ss 7.1-.38 (1995). 39 See generally, George C. Kiser and Martha W. Kiser, Mexican Workers in the United States: Historical and Political Perspectives (1979). See also, the Immigration Reform Control Act of 1986. Pub. L. 99-603, 100 Stat. 3359 (1986). In contrast to the Act's provisions, the SAW Program facilitated the entry of labor from foreign markets ensuring the demands of the sector were met. It is the sectors exemption from legislation extended to other sectoral needs that is the focus of this paper and not the individual laborers seeking employment and who contribute immeasurably in food production in the United States. 40 National Labor Relations Act, § 8(a), 29 U.S.C. § 158(a) (1970) (farmworker exclusion). This emphasizes the lack of legal machinery to assist efforts of farmworkers to form unions and other protective labor vehicles to elevate standards of working conditions. Attempts to recover minimum wages, improved housing conditions, and responsibility for social security responsibility by workers are not uncommon actions. See, e.g., Cavazos v. Foster, 822 F. Supp. 438 (1993) (class action of migrant pickle harvesters alleging defendant company paid less than minimum wage, allowed substandard housing and evaded social security responsibilities). 41 Act of June 25, 1938, ch. 676 13(a)(6), 52 Stat. 1067. 42 Act of Sept. 23, 1966, Pub. L.No. 89-601, § 201-04(b), 205(a), 213(c), 80 Stat. 833, 834, 836-38. 43 See, e.g., Aviles v. Kunkel, 765 F. Supp. 358 (S.D.Tex. 1991), vacated, 978 F.2d 201 (1991). 44 For a general overview of the exclusion of fieldworkers from workers' compensation coverage, see generally, the workers compensation statutes in Arizona, Alabama, Colorado, Delaware; Georgia; Idaho; Indiana, Iowa, Kansas; Kentucky; Louisiana, Maryland; Utah, Tennessee, Alaska, Wyoming, West Virginia, Michigan, Missouri, and Pennsylvania. Other states permit farmers election as to permitting coverage to fieldworkers. See e.g., New Mexico and Maine Workers Compensation Act. Some workers' compensation acts cover work performed on farms but also impose limitations not applicable to employment in other industries. See e.g., Washington State School Directors Assoc. v. Department of Labor and Industries, 82 Wash. 510 P.2d 818 (1973). 45 See, e.g., Jason DeParle, New Rows to Hoe in the 'Harvest of Shame,' N.Y. Times, July 28, 1991, at 4; Daily Report for Executives, Job Safety, Migrant Workers Lack Protection of Federal Safety Programs, Bureau of National Affairs, Feb. 26, 1992, at A5; Michael G. Wagner and Marcos Breton, Fields of Pain: Regulators Have Failed To Protect The Exploited Farm Worker, Sacramento Bee, Special Report, Dec. 8, 1991, at 1; Michael G. Wagner and Marcos Breton, Fields of Pain: Brutal Work, Lax regulation, Federal State Agencies Lack Staff, Will To Enforce Laws, The Sacramento Bee Final, Dec. 9, 1991. 46 Jean Gladner, A Harvest of Shame: The Imposition Of Independent Contractor Status on Farmworkers and its Ramifications On Migrant Children, 42 Hastings L.J. 1455 (1991). 47 See, e.g., Gonzalez v. Puente, 705 F. Supp. 331 (W.D. Tex. 1988); Farmer v. Employment Security Comm. of North Carolina, 4 F.3rd 1274 (4th Cir. 1993); U.S. General Accounting Office, GAO/T-HRD-91-40, Farmworkers Face Gaps In Protection and Barriers to Benefits, Joseph F. Delfico (1991). 48 See, e.g., Cavazos v. Foster, 822 F. Supp. 438 (1993). This does not include workers unable to prosecute employers for fear of retribution and or blacklisting from future employers. See Wilson Ring, Migrant Workers in McHenry Fighting The Odds To Be Paid, Chicago Tribune, July 25, 1991; Author's interview with potential clients, San Antonio, Texas. 49 Farmer v. Employment Security Comm. of North Carolina, 4 F.3rd 1274 (4th Cir. 1993). In the instant case female farmworkers and families sought appropriate housing and filed a violation of the Federal Fair Housing Act. 50 U.S. General Accounting Office, GAO/HRD-90-144, Legal Services Corporation: Grantee Attorneys' Handling of Migrant Farmworker Disputes With Growers 5 (1990). 51 In urban settings the doctrine of implied warranty of habitability serves to protect its residents from substandard housing. See generally, Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970). In rural dwellings the doctrine escapes application. It escapes application because of courts distinguishing the status of migrant workers as employees and not as tenants. 52 See Migrant and Seasonal Agricultural Workers Protection Act, 29 §§ 1801-1872, 1803(a)(1). Critics assert federal policy creates conditions that permit responding to the labor needs of the agricultural sector. For an elaboration on this issue see generally, Valdés, supra note*; Galarza, supra note*. 53 See generally, Cavazos v. Foster, 822 F. Supp. 438 (1993). Yet another difficulty for fieldworkers is access to legal services when employed in the fields. While a few courts have permitted access, agricultural employers and farm labor contractors are at times disallowed entry into migrant camps and thereby ensure yet further litigation demands on workers. See, e.g., State v. Shack, 277 N.E. 2d. (1971). For a general observation of the role of law and how it enhances distinctions see H.L. Hart, The Concept of Law (1961). Assisting this process is the close relationship between agri-lobbyists who seek a retrenchment in the few safety valves permitted fieldworkers. See, e.g., Suzanne Steele, Farmers Seek Another Delay To Starting Worker Safety Rules, The Columbus Dispatch, Jan. 19, 1995, at B2. 54 In some circumstances workers are forced into involuntary servitude. Author's interview with potential clients, San Antonio, Texas. See also, S.A. Express-News, S. Texas Rancher-Importer Convicted in Illegal-Alien Case, Jan. 9, 1992, at E7. 55 See, e.g., Marc Linder, Crewleaders and Agricultural Sweatshops: The Lawful And Unlawful Exploitation of Migrant Farmworkers, 23 Creighton L. Rev. 213 (1989/1990). See, e.g., Cavazos v. Foster, 822 F. Supp. 438 (1993); Yeska v. United States, DER No. 123, June 26, 1990 (IRS classified migrant workers as employees and taxpayer disputed classification contending they were independent contractors); Aviles v. Kunkle, 765 F. Supp. 358 (S.D. Tex. 1991). In permitting classification as independent contractors the burden falls on fieldworkers to deduct from their earnings social security taxes, a difficult task in light of their low wage structure. 56 Courts have established tests to determine the relationship between an employer and employee. See, e.g., Lauritzen v. McLaughlin, 109 S.Ct. 243 (1988); Donovan v. Gillmore, 535 F. Supp. 154 (N.D. Ohio 1982)(held migrant workers employees); Castillo v. Givens, 704 F.2d 181 (5th Cir. 1983) cert. denied, 464 U.S. 850 (1983); Beliz v. W.H. McLeod and Sons Packing Co., 765 F.2d 1317 (1985). Courts generally consider six criteria in determining the nature of relationship between agricultural employers and migrant workers. See, e.g., Donovan v. Brandel, 736 F.2d 1114 (6th Cir. 1984) (issue to be addressed on a case-by-case basis). Where legal assistance is available the end result is time consuming and extensive. In response to a hands off treatment Congress excluded farm labor from the scope of wage and hour laws, formally imposed the unequal and disparate treatment of farm laborers, and simultaneously protected and privileged agricultural employers. This exclusion from the agrarian economic legislative framework is thus based on a cumulative historical process. 57 See generally, Federal Document Clearing House Congressional Testimony, Shelley Davis, Farmworker Justice Fund, Nov. 10, 1993. Davis, an attorney, testified the enforcement record of the states Department of Agriculture reflects lax treatment in failing to enforce worker protection standards against growers, many of which are seen as constituents of the various states. 58 See, e.g., Bertelsen v. Agricultural Labor Relations Board, United Farm Workers, AFL-CIO, 29 Cal. Rptr.2d 204 (1994); Medrano v. Allee, 347 F. Supp. 605 (1972). In Medrano, farmworkers brought an action against certain Texas rangers, state officers and county officials, declaring certain statutes unconstitutional and for injunction restraining interference with civil rights of plaintiffs and the class they represented; persons engaged in promoting farmworkers' union were subjected to arrests, detentions without filing of charges, seizures of signs, dispersal of pickets and demonstrators, threats of further prosecutions if prounion activities did not seize, and the abuse of bonding process, prosecutions were not in good faith and amounted to irreparable injury inasmuch as union's efforts collapsed under pressure by state and local officials, and, as plaintiffs, could not eliminate threats to their rights as citizens in a single criminal prosecution, they were entitled to injunction restraining defendants from any future interference with their civil rights. 59 See, e.g., Gonzalez v. Puente and Holmes and Holmes, 705 F. Supp. 331 (W. D. Tex. 1988) (buyer shielded by not being defined as an "employer" of workers within meaning of Fair Labor Standards Act and within meaning of MSAWPA); Donovan v. Brandel, 736 F.2d 1114 (6th Cir. 1984). 60 See e.g., Toledo Blade, Migrant Farm Workers Could Lose Their Lawyers, Jan. 19, 1996; States News Serv., Legal Aid Debate Pits Farmers Against Laborers, Nov. 22, 1991. Yet another difficulty for fieldworkers is access to legal services when employed in the fields. While a few courts have permitted access, agricultural employers and farm labor contractors often disallow entry into migrant camps and thereby ensure yet further litigation demands on workers. See e.g., State v. Shack, 277 N.E. 2d. (1971). For a general observation of the role of law and how it enhances distinctions see H.L. Hart, The Concept of Law (1964). Assisting this process is the close relationship between agri-lobbyists who seek a retrenchment in the few safety valves permitted fieldworkers. See, e.g., Suzanne Steele, Farmers Seek Another Delay To Starting Worker Safety Rules, The Columbus Dispatch, Jan. 19, 1995, at B2; Bureau of National Affairs, Daily Report for Executives, Job Safety, Migrant Workers Lack Protection of Federal Safety Programs, Feb. 26, 1992, at A5; Michael G. Wagner and Marcos Breton, Fields of Pain: Regulators Have Failed To Protect The Exploited Farm Worker, Sacramento Bee, Special Report, Dec. 8, 1991, at 1; Michael G. Wagner and Marcos Breton, Fields of Pain: Brutal Work, Lax Regulation, Federal State Agencies Lack Staff, Will To Enforce Laws, The Sacramento Bee Final, Dec. 9, 1991, at 1. 61 To offset harsh labor and working conditions, primary emphasis is required in the monitoring, reporting, and prosecuting of employers failing to meet federal minimum wage levels, housing standards, and/or health related obligations. An international standardized process is strongly encouraged. If found in violation of federal obligations employers benefitting from NAFTA related economic activities and other incentives could sustain offsets from additional trade activity. 62 See, e.g., U.S. Department of Labor Bureau of Labor Statistics, Survey of Occupational Injuries and Illnesses (1992); U.S. Department of Labor, Occupational Injury and Illness Incidence Rates by Industry, 118 Monthly Lab. Rev. (1988); G. Rust, Health Status of Migrant Farmworkers: A Literature Review and Commentary, 80 Am. J. Pub. Health, 1213 (1990) (injury recognized as a leading cause of morbidity and mortality). EPA estimates agricultural employees annually suffer 20,000-30,000 acute illness and injuries from exposure to pesticides. Farmworker Just. News, Special Report: A Farmworker Perspective on Pesticides, Farmworker Justice Fund, (1990). 63 U.S. General Accounting Office, GAO/HRD-92-46, Hired Farmworkers, Health and Well-Being at Risk (1992). 64 See, e.g., C. Sagarser, et al, Occupational Pesticide Poisoning In Apple Orchards- Washington, 1993, Epidemiological Notes and Reports, 42 Morbidity and Mortality Wkly Rept., 993 (1994) ("data identified a high proportion of Hispanics among cases of agriculturally related pesticide poisoning"); G. Rust, Health Status of Migrant Farmworkers: A Literature Review and Commentary, 80 Am. J. Pub. Health, 1213 (1990) (injury recognized as a leading cause of morbidity and mortality). EPA estimates agricultural employees annually suffer 20,000-30,000 acute illness and injuries from exposure to pesticides. Farmworker Justice News, Special Report: A Farmworker Perspective on Pesticides, Farmworker Justice Fund (1990); Federal Document Clearing House, Congressional Testimony, Shelly Davis Attorney Farmworker Justice Fund House Agriculture/Operations and Nutrition EPA Worker Protection Standards For Agricultural Pesticides Nov. 10, 1993; U.S. General Accounting, GAO/PEMD-94-6, Pesticides On Farms - Limited Capability Exists To Monitor Occupational Illness and Injuries (1993); Farmworker Justice News, Agri-Business and the Insurance Industry Seek to Weaken Farmworkers' Protections Under Migrant and Seasonal Agricultural Workers Act 3 (1991). 65 U.S. General Accounting Office, Hired Farmworkers: Health and Well-Being At Risk, supra note*; Carlo V. Di Florio and Matthew McLees, Pesticide Regulation: The Plight of Migrant Farmworkers v. The Politics of Agribusiness, Dickenson J. Envtl. L. and Pol'y 148 (1992); Paul M. Lantz, et al., Peer Discussions Of Cancer Among Hispanic Migrant Farmworkers, 109 Pub. Health Rep., 512 (1994). Workers in the food processing industry also report difficult working conditions reporting "crippled hands and wrists, damaged lungs, and on rare occasion, even death." See generally, Atlanta Const., A Journal-Constitution Special Report, Chicken: At What Cost? Poultry Workers Risk Health For Low Pay, June 2, 1991. 66 See, e.g., Valerie A. Wilk and D. Michael Hancock, Farmworker Occupational Health and Safety In the 1990's, 6 New Solutions (1991). 67 Diane Mull, Executive Director, Association of Farmworker Opportunity Programs, ("AFOP") cited in American Farmworker Opportunity Program, Washington Newsline (February 1991). 68 U.S. General Accounting Office, GAO/HRD-91-35, Occupational, Safety and Health, OSHA Policy Changes Needed To Confirm That Employers Abate Serious Hazards (1991). Measuring the full scope of field related illnesses has largely escaped scrutiny. 69 Under traditional legal analysis the law requires establishing causation in order to determine fault and findings of liability against employers who have failed to protect their workforce. Reference, Lisa J. Gold, Pesticide Laws and Michigan's Migrant Farmworkers: Are They Protected? Julian Samora Research Institute, Research Report No. 12 (1996) for a review of pesticide legislation affecting Michigan's agricultural workers. 70 See, e.g., Marlene Sokol, Still A Bitter Harvest, St. Petersburg Times, June 25, 1995, at B1. Five years later Phosdrin remains dangerous, legal, and remains in use by fruit and vegetable growers who are failing to employ sustainable agriculture methods. 71 Id. See also, Bill Lambrecht, Environmental Agency Seeks to Practice "Common Sense," St. Louis Post-Dispatch, May 15, 1995, at B5; Deborah Vanpelt, Farmworker Protections Compromised, Advocates Say, The Tampa Tribune, Apr. 29, 1995, at 4 (Worker Protection Standard modified five times since becoming law on Jan. 1, 1995); Tahnee Lane, Study Finds Lack of Safety Training For State's Migrant Farm Workers, Toledo Blade, Apr. 3, 1996. 72 U.S. General Accounting Office, Hired Farmworkers, Health and Well-Being at Risk, supra note*, at 3. Children are allowed in the fields as a result of the Child Labor Exemption of the Fair Labor Standards Amendments of 1949, Pub. L. No. 393, 63 Stat. 910, 918 codified as amended at 29 U.S.C. § 213(c) (1988). See also, Davin C. Curtiss, The Fair labor Standards Act and Child Labor In Agriculture, 1995 The J. of Corp. L. 303 (1995); Brian Kaplan, Children Of The Harvest: Underage Migrant Farmworkers Help Feed A Nation- But At What Cost? The Boston Globe, Apr. 30, 1995, (estimates of children working on farms range between 100,000 to 800,000). 73 Nancy Stancill, Migrant Farm Labor In Texas Gives Children Tough Row to Hoe, Houston Chron., Jan. 12, 1993, at A1. See also, U.S. General Accounting Office, Farmworkers Face Gaps in Protection and Barriers to Benefits: Hearings Before Select Comm. On Aging, House of Representatives, Statement of Joseph F. Delfico, Director, supra note*, (child labor study revealed that in New York over 40% of the children studied in 1990 were working in fields "still wet from pesticide exposure and over 40% had been sprayed while in the fields"). Children in the fields are plagued by other hazards. See, e.g., The Plain Dealer, Labor Leader Wants Kids Out of Farm Fields, Sept. 3, 1993, at B3 (death of six-month-old when pickup truck providing some shade over baby's carrier ran over infant); Mitch Weiss, Children of Migrant Workers Toll Illegally In Fields of Ohio, Chicago Tribune Sept. 13, 1992, at W8; Child Labor Amendments, Sen. Rept. No. 102-380, Aug. 12, 1992. 74 See, e.g., Robert Maril, Poorest of Americans, The Mexican-Americans of the Lower Rio Grande Valley of Texas 105 (1989). See also United Press International, EPA Misses Pesticide Safety Deadline, May 9, 1994, Michigan, Regional News; Jason DeParle, New Rows to Hoe in the 'Harvest of Shame,' N.Y. Times, July 28, 1991, at 4-1; Bureau of National Affairs, Job Safety, Migrant Workers Lack Protection of Federal Safety Programs, Feb. 26, 1992, at A5; Michael G. Wagner and Marcos Breton, Fields of Pain, Regulators have failed to Protect the Exploited Farmer Worker, Sacramento Bee, Dec. 8, 1991, Special Report. 75 U.S. General Accounting Office, GAO/NSIAD-91-155, Report to the Chairman, Committee on Agriculture, U.S.-Mexico Trade Impact of Liberalization in the Agricultural Sector (1991). 76 Principal U.S. farm exports to Mexico are feed grains, oilseeds, meat, and dairy products with grains and oilseeds accounting for most of the expansion of the U.S. agricultural exports. See 2 Mexico Trade and Law Reporter, U.S.-Mexico Trade Prospects Under NAFTA, (June 1, 1992). Mexico's main exports to the United States include tropical and specialty crops such as coffee, fruits, vegetables, and feeder steers. Horticultural products would account for a large part of the expansion of Mexico's exports to the U.S. 77 During the 1980's, Mexican government initiatives to liberalize trade included removing most import licensing requirements and substantially reducing rates. A number of United States agricultural exports, particularly processed foods, have benefitted from this new access to Mexican markets. 78 Mexican agricultural exports demonstrate the benefits and goals achieved from these efforts. In 1989 agricultural trade estimated approximately $200 million and increased significantly throughout the past decade. For example, the total value of bilateral trade increased by 89% from $27.8 billion in 1980 to $52.6 billion in 1989. In 1992 estimated levels reached 4 billion. Mexico, now ranks as the United States' third largest trading partner. See, e.g., Federal News Service, Hearing of the House Agriculture Comm., NAFTA and GATT Issues, Mickey Kantor Testimony, Mar. 17, 1993. 79 During debate over the purported merits of NAFTA, Congress yielded to the sectors assertions of increased exports of high technology products and services, expanded investment opportunities, and increased variety of goods that would be available to American consumers. The operating assumption was that this particular agreement would ultimately lead to lower prices of labor intensive goods, for American consumers. 80 See, NAFTA Text, supra note*, at iii. 81 Agriculture sustains additional benefits by way of the establishment of clear binding protection for intellectual property rights; fair and expeditious dispute settlement procedures; and the means to improve and expand the flow of goods, services, and investment between the United States and Mexico. Terrance Center, NAFTA (1992). NAFTA proponents assert, trade forces business to hold costs down, improves quality, and thereby provides consumers with greater choices and lower prices. See, e.g., The Washington Times, Riding a Free Trade Tide, May 20, 1991 at A1; Rudiger Dornbusch, If Mexico Prospers, So Will We, The Wall Street Journal, Apr. 11, 1991. 82 North American Agreement on Labor Cooperation, NAFTA Text, CCH, at 775 (1993). 83 Specifically, Annex 1603 of the NAFTA provides for the entry of workers qualifying as professionals. Agricultural workers, however, are not included in the legislation. This resulted from the assertions of NAFTA proponents, that adding significantly to employment in Mexico would reduce pressure for migration into the United States. This approach is curiously selective because it focuses on immigration from Latin American countries. See, e.g., Business Week, Mexico, A New Economic Era, Nov. 12, 1990, at 108 (without free trade, Mexicans would migrate north "not by the hundreds or thousands but by the millions." Karl Kahler, Dissolving the Borders on Trade, San Jose Mercury News, Oct. 3, 1993, at A20. 84 CCH, NAFTA. The combination of imprecise protection and carefully placed restraints assures the continuation of harmful condition for United States farmworkers. Even where strong labor principles theoretically apply, federal agencies responsible for regulating fieldworkers provide less protection than applied to others. See, e.g. U.S. General Accounting Office, GAO/T-HRD-91-40 Farmworkers Face Gaps In Protection And Barriers To Benefits: Statement of Joseph F. Delfico (1991). 85 Id. Art. 1(b). 86 Id. Annex 1. 87 Id. Art. 5. The time required to file complaints are not easily available for fieldworkers who cannot afford to leave the fields for the filing of administrative complaints. For a discussion of NAFTA's dispute resolution mechanism and its side accords on labor and the environment, see e.g., Jack I. Garvey, Trade Law and Quality of Life - Dispute Resolution Under The NAFTA Side Accords On Labor And The Environment, 89 A.J.I.L. 439 (1995). 88 Richard Delgado, et. al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wisc. L. Rev. 1359 (1985). 89 Professor Delgado, supra note*, at 105. 90 Legal commentary on the working conditions of fieldworkers advance "powerlessness" models. Within the venue of agricultural law the author disagrees. By exposing the disparate conditions of fieldworkers which are structurally imposed by agricultural law, commentary fails to draw on the inability of fieldworkers seeking access to the regulatory framework and ensures fieldworkers remain on the outside of federally derived agricultural benefits afforded others in the industry. Within the realm of agricultural law the goal of this essay is to expose structural inconsistencies and the distributional impacts of its regulatory framework on fieldworkers. 91 U.S. Bureau Of The Census, 1992 Census Of Agriculture, U.S. Data Characteristics Of Operator And Type Operated by Black and Other Races, 1992, 1987, and 1982 (1995). 92 See, e.g., Rochín, supra note*, at 62; Paredés, A Border Ballad And Its Hero, supra note*, at 11. For an historical perspective of the Chicana/o presence in the Midwest see Dennis N. Valdés, The New Northern Borderlands: An Overview of Midwestern Chicano History, 2 Perspectives in Mexican Amer. Studies 1 (1989); Dennis N. Valdés, Betabeleros: The Formation of an Agricultural Proletariat in the Midwest, 1897-1930, 30 Lab. Hist. 537 (1989). 93 Across the country, Latino males, as identified by the U.S. Census, are more likely to be employed in "farming, forestry, and fishing" than non-Latino males (8.6% vs. 3.7%). Similarly, Latino females share similar characterization totaling 1.2% compared to 0.9% non-Latinas. U.S. Department Census, The Hispanic Population of The U.S. Southwest Borderland, c3.196: P-23/17 (1992); see also, CPR Series P-20, No. 465: Rural and Rural Farm Population (1987). Population figures, however, remain inexact resulting from the mobility of the agricultural workforce during census surveys. See, e.g., Leslie A. Whitener, A Statistical Portrait Of Hired Farmworkers, Monthly Lab. Rev. 49 (1994) (nature of seasonal work ensures undercounting of fieldworkers when workers are not employed on farms during the census period); Motivation, Education and Training, Inc., Comprehensive Job Training and Employment Services For Migrant and Seasonal Farmworkers in Texas (1991). The failure of a national survey offering concise population figures hampers exact measurement of the agricultural workforce and is the subject of conjecture. Report of the Commission on Agricultural Workers (1992) "farmworkers are consistently undercounted" Id. at 1; William K. Barger and Ernesto M. Reza, The Farm Labor Movement In the Midwest (1994). 94 Census figures place the rural Mexican population residing on farms at approximately 126,000:
Current Population Reports, Series P-20, No. 457 (1990) at 7; see also, Refugio Rochín, Hispanic Americans in The Rural Economy, at 65 citing, U.S. Bureau of the Census, "Residents of Farms and Rural Areas (1989). Out of all farm operators, those of Spanish origin, comprise 20,956. Those not of Spanish origin comprising 12,394,690. U.S. Department of Census, 1992 Census of Agriculture, U.S. Data (1995) (Characteristics of Operator and Type Operated by Black and Other Races, 1992, 1987, and 1982). 95 Land trusts have been in existence since the mid-1800's. See generally, Itzchak E. Kornfeld, Conserving Natural Resources and Open Spaces: A Primer On Individual Giving Options, 23 Envtl. L. 185 (1993). 96 U.S. Department of Agriculture, Farm Finance: The Number of New Farmers Declining (1993). The declining number of new farmers has induced Congress to help ease the entry of people into farming. During the mid-1980's, the average annual entry fell about 25% and declining numbers continue. The decline is largely attributable to economic conditions in the agricultural sector that have made farming less financially desirable. 97 Individuals, moreover, potential farmers face difficult hurdles in obtaining financing to cover the costs of acquiring and operating a farm and in obtaining suitable land to farm. Id. FmHA, the "lender of last resort" for the nation's farm sector, has not specifically targeted loan funds to beginning farmers. Individuals, nonetheless, may obtain loans if able to meet its relatively lenient loan-making standards. The agency has given beginning farmers priority over certain other individuals in leasing or purchasing its inventoried farm properties, but the suitability of these properties for beginning farmers is often questionable. Some states, moreover, sponsor programs targeting loan assistance to beginning farmers. Qualifying for credit through these programs or at FmHA, for the Chicana/o farmer however, present difficulties. Author's interview with potential client, San Antonio, Texas (1992). 98 See U.S. General Accounting Office, GAO/RCED-97-41, Farm Programs, Efforts to Achieve Equitable Treatment of Minority Farmers (1997). 99 Functional definitions as to what constitutes farming under various federal and state laws is often the subject of debate and litigation. See, e.g., National Broiler Mktg. Ass'n v. United States, 436 U.S. 816 (1978) (producer of broiler chickens precluded from qualifying as a "farmer" within meaning of Capper Volstead Act when it employs an independent contractor to tend chickens during "grow-out" phase; Farmegg Products v. Humboldt County, 190 N.W.2d 454 (Iowa 1971); Farmers Reservoir and Irrigation Co. v. McComb, 337 U.S. 755, 762-63 (1940) (agriculture placed into "primary" and "secondary" categories). 100 Major agricultural states promote increased consolidation efforts in the production of this country's agricultural market. See, e.g., California State World Trade Commission, California's Stake in the U.S.-Mexico Trade Negotiations (1991) (memorandum on file with author)(promoting use of agricultural maquiladoras processing a range of products from chicken parts to dehydrated onions). In attracting consolidation efforts vertical integration of farm markets is expedited. One area providing an excellent example, is the poultry industry. 101 U.S Department of Agriculture, A Time to Choose: Summary Report on the Structure of Agriculture 73-74, 76-78 (1981); see also Homestead Act, Act of May 20, 1862, Ch. 75, 12 Stat. 392(granting acreage to homesteaders). 102 Neil D. Hamilton, Agriculture Without Farmers: Is Industrialization Restructuring American Food Production and Threatening The Future of Sustainable Agriculture?, 14 N. Ill. L. Rev. (1995) (effect of biotechnology on agriculture). Since 1935 the number of farms in the U.S. has declined considerably with ownership and control of farm sector assets becoming more concentrated in large commercial farms. In 1935 the census counted the highest number of farms, 6.8 million. In 1992 the Census of Agriculture reported 1,925,300 farms, making it the first census since 1850 with fewer than two million farms. U.S. Department of Census, 1992 Census of Agriculture (1992), Table II, Tenure and Characteristics and Type of Organizations, supra note*, at 253. The Census designates a farm is any place which sold or normally would have sold $1,000.00 or more of agricultural products during the census year. Id. Agricultural census attributes disclose a total of 1.93 million farms in the U.S. in 1992; down from 2.09 million in 1987. This constitutes a decline of about 32,500 farms a year. As of 1977 farms with over $40,000 in gross sales control over 52% of the total farm assets. Yet they account for only 19% of the total number of farms. Real estate and machinery also increased while livestock, crops, and financial assets declined. 103 See, e.g., Jim Hightower, Eat Your Heart Out (1976); Joseph N. Belden, Dirt Rich, Dirt Poor (1986); cf., John Fraser Hart, The Land That Feeds Us (1991) (views loss of family farms as a romanticized ideal and advocates economies of scale in facilitating this country's cheap food policy). Many economists adopt the belief that the less efficient and smaller farm units must disappear before farmers can expect financial improvement", Kovarsky, Congress and Migrant Labor, 9 St. Louis U. L. J. 293, 348 (1965). Other industries have similarly followed this parallel construction. See, e.g., Frederick Clairmonte and John Cavanagh, The World In Their Web: The Dynamics of Textile Multinationals (1991) (analysis of policies and strategies enabling a handful of monopolies to dominate the textile industry); David Montgomery, Workers Control in America (1979) (impact of industrialization irreconcilable with New Deal legislation written to stabilize labor). 104 Eight federal agencies retain programs designed for rural areas in constructing water and/or wastewater facilities and include the U.S. Department of Agriculture's (USDA) Rural Development Administration, USDA's Farmers Home Administration; Appalachian Regional Commission; Department of Housing and Urban Development; Department of Commerce's Economic Development Administration; Environmental Protection Agency; Department of Health and Human Services; and Department of the Interior. U.S. General Accounting Office, Rural Development, Patchwork of Federal Water and Sewer Programs is Difficult to Use, supra note*, at 9. Other organizations assist rural areas in "identifying, applying for, and administering program grants, loans, and technical assistance. These include, Regional Development Centers, Rural Information Center, Rural Community Assistance Program and Private Firms. Id. Specifically, the Regional Development Centers, Water and Waste Disposal Systems for Rural Communities Program and FmHA's Rural Housing Site Loan Program are directly restricted to populations of 10,000 or less; RDA's Emergency Community Water Assistance Grants are restricted to populations of 15,000 or less; and RDA's Rural Development Grants Programs limits availability to a community outside a city with a population of 50,000 or less. Id. at 11. Hindering eligibility and potential grants is an unwieldy federal processing of applications with differing standards and application criteria and the demands of meeting timetables with funding cycles. Id. at 15. 105 See e.g., Devon Pena and Jose Rivera, Historic Acequia Communities In The Upper Rio Grande (1995) (unpublished essay on file with the author); Devon Pena, Agroecology of a Chicano Family Farm (1997) (publication forthcoming). 106 See Federal Farmland Protection Policy Act, 7 U.S.C. Sec. 4201-4209 (1988). Anti-corporate farm legislation seeks to preserve existing family farm systems. Minn. Stat. Ann. Sec. 500.24 (1995); Brian F. Stayton, A Legislative Experiment in Rural Culture: The Anti-Corporate Farming Statutes, UMKC Rev. 679 (1991). 107 The NAFTA created the North American Development Bank and Border Environment Cooperation Commission to address environmental and infrastructure issues along the U.S.-Mexico Border. U.S. General Accounting Office, GAO/GGD-95-10BR, North American Free Trade Agreement: Structure and Status of Implementing Organizations (1994). Along with the North American Development Bank ("BECC") the Agreement also established the Border Environmental Cooperation Commission (NADBank") to facilitate the free flow of commerce. "Capitalized and governed by both countries" the two institutions are to "provide additional support for community adjustment and investment related to NAFTA." Department Of The Treasury, Fact Sheet On The U.S./Mexican Agreement On The Border Environment Cooperation Commission (BECC) and the North American Development Bank (NADBank). The BECC, however is limited to the U.S.-Mexico border region. The U.S. and Mexico will provide $225 million in paid-in-capital over a 4-year period to leverage financing. Ten percent of the U.S. and Mexican shares of the NADBank will be available for community adjustment and investment. Id. Excluded from its scope of review is a focus on preserving open spaces in the region and issues germane to land ownership for agricultural workers. Introduction | Contextualizing Agricultural Law and Policy: Jurisprudence and Agricultural Outsiders | Agricultural Underdogs | Terms and Conditions of Employment | Agricultural Workers and Health Standards | Agricultural Workers and the Global Arena | North American Free Trade Agreement | Agricultural Law and Policy Alternatives | Conclusion | Endnotes |
|
|
|
For more information, contact: |
