Originally Published in The Los Angeles Times.
By KARTIKAY MEHROTRA, PETER WALDMAN and JONATHAN LEVIN| BLOOMBERG |DEC 18, 2018 | 5:05 PM
The hours would be long, the sun blazing, the food terrible — Oscar Ivan Contreras knew what to expect as the bus rumbled toward America.
He’d been on this bus before, bound for California and a season’s work picking blueberries. It was partly math that pulled him back now: Six hours’ pay as a legal, temporary worker for Munger Brothers LLC, North America’s largest blueberry grower, equals a week’s wages back home in the Mexican state of Nayarit.
But almost as soon as Contreras and some 600 other Mexican guest workers arrived in California’s Central Valley, he realized something was very different from the year before. It was spring 2017, and America had changed.
Munger’s managers were surlier, he says, and more demanding. On many days, workers got no lunch until 3 p.m. — and when the food came, it was often rotten or there wasn’t enough, Contreras says. Munger failed to supply sufficient drinking water or toilets at one of its facilities, resulting in a $6,000 fine from the state. Workers say they were compelled to work even when sick or injured. Ultimately, the company fired dozens of them when they walked off the job for a day after one man collapsed in the fields.
Throughout, those who complained heard a new refrain from Munger’s supervisors, tuned to the era of President Trump’s strict immigration policies: “Go back to Mexico.” This response to every gripe “was a way to remind the worker the company has the power to fire them and send them home,” according to a court affidavit submitted by Sierra Giovanna, who managed Munger’s guest worker program before she was fired in August 2017. The affidavit was filed in a federal lawsuit in which workers accuse Delano, Calif.-based Munger of labor trafficking.
Munger’s treatment of its guest workers in 2017 has drawn fines from regulators in California and Washington state, and a federal investigation by the Department of Labor that officials say is ongoing. The company declined to answer questions for this article, but said in a statement after the workers filed suit in January that it intends to “vigorously fight” their claims. “All employees are treated well and are paid well,” the company said.
In court filings, Munger denies wrongdoing and alleges the guest workers’ production was “exceedingly low,” possibly because some of the laborers tried to force others to slow down, according to one filing. According to company filings, Munger provided sufficient food for nourishment, but some of the laborers in 2017 were picky eaters who tried to game the system for free or low-cost medical care.
Between the blueberry harvests of 2016 and 2017, something did change in America. During Trump’s first year as president, arrests of immigrants suspected of being in the country illegally jumped 41%, stoking fear of deportation in immigrant communities. Such arrests accelerated even more in 2018, increasing 55% over 2016. Other administration policies have eroded protections against labor trafficking — that is, compelling people to work through force, fraud or coercion — according to immigration lawyers.
In short, worker advocates say, Trump’s immigration crackdown has become the nasty boss’ best friend. Terrified of “la migra,” more workers are putting up with unpaid wages, untreated injuries and various forms of mental and physical abuse, says David Weil, who was director of the U.S. Labor Department’s Wage and Hour Division under President Obama.
“Industries dependent on immigrant labor have been emboldened by the Trump administration’s anti-immigrant policies,” says Victor Narro, a director at the UCLA Labor Center, an academic research institute. “It’s all about maximizing profitability by not paying minimum wage or not offering workers the labor protections they’re entitled to.”
It’s impossible to quantify how employers’ behavior is changing, but data from the California Labor Commissioner’s Office offer a glimpse. Since Trump’s January 2017 inauguration, the agency has received at least 172 complaints alleging that employers threatened to retaliate against workers based on their immigration status — which is illegal under federal and California law. In 2014 through 2016, that office received just 29 such complaints.
The scores of new cases suggest how brazen some employers have become:
• A tile installer’s boss threatened to call Immigration and Customs Enforcement agents — right in the middle of a hearing at the Labor Commissioner’s office. “You have to stop doing this for illegals,” the employer beseeched the commissioner’s staff members, who fined him $20,000.
• A vitamin store owner told an employee seeking back pay that she’d “use President Donald Trump” to return the worker to her country, according to the commissioner’s findings. The owner followed up with a text to the worker: “Viva Donald Trump!” She was fined $5,000.
• A drywall hanger won a claim for a week’s back pay against a general contracting company whose owner responded with an angry text to the worker: “Guess what, it’s not over, it’s my turn now,” the vulgarity-studded message said. “TRUMP IS COMING TO TOWN. Have [you] … deported.” The labor commissioner imposed a $100,000 fine for the retaliatory threats, half payable to the worker. That drew another response from the owner, this time on Facebook. “I think TRUMP is the best president ever, but we’re still having problems,” he wrote. “Why is it that illegal Mexicans have more rights than hard-working General Contractors?”
It’s not just California. Audrey Richardson, an employment attorney with Greater Boston Legal Services, says she sees far worse cases — workers kept essentially in servitude.
“I don’t think it’s an exaggeration to call some of the cases we’re seeing Trump slavery,” she said.
The White House and the U.S. Department of Labor didn’t respond to repeated requests for comment.
Even as the administration’s hard line at the border has led to tear gas and turmoil, the agricultural guest worker program that brings foreign nationals to the United States on temporary visas has grown rapidly. Berry growers such as Munger are the leading source of demand for the workers, government data show, accounting for more than 10% of the 200,049 positions that were certified in 2017 and the 242,762 certified this year.
In 2017, Munger paid Oscar Contreras and his fellow guest workers about $13 an hour, a rate set by the federal Department of Labor, state regulations and unions. Employers that use the guest worker program have a number of obligations. They must cover employees’ costs for travel to the United States once the workers have completed half the contract period — and then cover the trip home at the contract’s end. They must provide lodging and three meals a day, at minimum cost to the workers. And they must provide some workers’ compensation insurance to cover illnesses and injuries.
For Contreras, as for thousands of other Central Americans, not all the reasons for heading north were economic. A summer in the United States offered at least temporary escape from Nayarit, a pocket of Mexico where Joaquin “El Chapo” Guzman’s arrest had triggered a murderous turf war between rival drug cartels.
Contreras wanted a better life. He went to California to support his three young children and to try to earn enough money to pay tuition for a medical imaging degree. “I’m a college dropout,” he says. “I wanted to go back to the university and finish my degree.”
Not long after work began, an apparent allergic reaction caused his face to swell and his throat to constrict, Contreras says. His head pounded in the heat, but he pressed on. He watched another laborer, Jesus Solorzano Leon, try to keep working through an inexplicable and sudden facial paralysis.
Leon says he spent the last of his savings on co-pays for injections and doctors’ bills before giving up. Munger refused to pay for his trip home, so co-workers chipped in for his bus ticket, says Leon, whose droopy right eye earned him the nickname “La Pirata.” Munger, in its answer to the workers’ complaint, denies it sent sick workers back to Mexico without paying for their transportation.
Workers say their bosses had little sympathy for such ailments. “You came here to suffer, not for vacation,” a company supervisor named Jessica told the workers, according to sworn affidavits filed in the labor-trafficking lawsuit. One hotel for the workers, near Stockton, was riddled with bedbugs, says Giovanna, the former Munger labor manager.
After the California harvest, most of the Munger workers were bused 900 miles north to another of the company’s blueberry plantations in Sumas, Wash., called Sarbanand Farms. They were housed in a barracks-style camp, enclosed by a cyclone fence with a guard at the gate. Threats and abuse got worse, the workers say.
There, Munger supervisor Nidia Perez admonished them that only those “on their deathbeds” could miss work, according to workers’ affidavits. The warning was reinforced by the sight of U.S. Customs and Border Protection agents in marked SUVs patrolling outside the camp, which lies a few miles from the Canadian border. In her answer to the workers’ complaint, Perez, who is named as a defendant in the lawsuit, admits she told workers not to miss work “unless you’re dying,” but she denies she meant they shouldn’t take sick days or report medical problems to supervisors.
Pressure to pick faster intensified as mid-summer temperatures reached the 90s and smoke from Canadian forest fires enveloped the fields. One boss declared that any worker who failed to pick two boxes of berries an hour would be deported, according to a worker’s affidavit, which doesn’t name the supervisor.
In the camp’s dining hall, proctors marked workers’ hands when they went through the buffet line to ensure no one got seconds, according to court affidavits. When the food ran out, some workers didn’t eat.
Munger often served spoiled meat and 3-day-old scrambled eggs, says Maria Gallardo, who worked at Sarbanand as a cook and food server in August 2017. When Gallardo pointed this out to one of the supervisors, the woman told her “it doesn’t matter,” Gallardo says. As the camp population tripled to almost 600 workers, the food budget didn’t keep up, she says. She gave workers extra tortillas and seconds when she could, but she thinks most of them left hungry.
“It was very unjust,” says Gallardo, who was fired after 10 days on the job. In recent court filings, Munger has said that its food was nourishing and that workers complained only because some had different tastes. “Coastal workers preferred seafood,” one filing says. “Others preferred carne asada.”
One man at Sarbanand was particularly skinny. Honesto Ibarra would eat only a few beans, no rice or meat, Gallardo recalls. She asked him why. “I just don’t feel well,” he told her.
In truth, Ibarra had diabetes, and he’d apparently run out of medicine at the camp. In court filings, company officials say he never disclosed his condition to them.
On Aug. 1, Ibarra didn’t get up for work. He told a Munger office assistant who brought all three meals to his bedside that day that he had a headache and wanted to sleep it off. He called Mexico and told his wife he was going to give his notice and come home, according to Corrie Yackulic, the Ibarra family’s Seattle attorney.
The next morning Munger manager Javier Sampedro rejected Ibarra’s request for the company’s help to fly home and ordered him back to work, according to co-worker Barbaro Rosas, one of the two named plaintiffs in the labor-trafficking suit. Later that day, Ibarra collapsed in the field.
Sampedro asked the office assistant to drive Ibarra to the emergency room, but the assistant refused, noting his lethargy and labored breathing, and called 911, according to Washington state investigative documents obtained by Bloomberg.
Ibarra’s coworkers demanded information about his condition in a meeting with Sampedro the next night. They warned the farm manager that others might collapse without more water and shade. Some asked why Munger provided medical attention only after workers were deathly ill.
On Aug. 4, about 60 of the workers didn’t show up for work, saying they were striking for better working conditions. A day later, Munger fired them. Company officials cited “insubordination” and told the workers they had an hour to leave camp before Munger called police and immigration agents to take them away, according to workers’ court affidavits. Oscar Contreras was among those fired.
Meanwhile, Ibarra, 28, lay comatose in a Seattle hospital. He died two days later. The cause of death was complications from diabetes, according to the medical examiner. A subsequent state investigation found that his death was unrelated to work conditions.
After his death, Ibarra’s wife, Brenda, and their three kids were evicted from their home in the rural Mexican state of Zacatecas, and they had to move into a two-room shack with no electricity, according to Yackulic, her lawyer. She recently applied for a widow’s pension from the state of Washington workers’ compensation system, Yackulic says. Munger has given nothing, she says.
Munger referred questions about Ibarra’s death to a statement issued by Sarbanand Farms this August, which said the grower “fully supported his family during this ordeal.” It added: “We are committed to the well-being of every worker.”
Most employers who use the H-2A temporary visa program comply with its rules, but a few unscrupulous users tarnish the rest, says Jason Resnick, vice president and general counsel of Western Growers, which represents farmers in California, Arizona, New Mexico and Colorado.
“We know Americans are not willing to engage in labor-intensive agriculture at any wage, but if we’re going to feed this country, we’re going to need to rely on foreign labor,” Resnick says. “We don’t want workers to be exploited or denied benefit. But when someone intentionally violates the rules, it casts a pall on the entire program,” he added, referring to the industry as a whole, not Munger specifically.
Whether applied to guest workers, permanent residents or native-born citizens, a bedrock principle of U.S. labor law is that every job holder, regardless of immigration status, enjoys equal protection from abusive employers. Yes, it’s illegal to hire immigrants who aren’t authorized to be in the country, but it’s just as illegal to pay them less than minimum wage, skimp on overtime or make them work in unsafe conditions.
After Trump’s election, Irasema Bravo Lopez says, her job became unbearable. She was accustomed to long shifts stocking shelves at MD Gas & Foods in Guerneville in Sonoma County, but things got worse quickly, she says.
Owner Mangal Dhillon made her work longer hours for less money, she says; she was pulling 18-hour shifts seven days a week. After a customer threw a cup of scalding coffee at her in what she called a racially motivated incident, Dhillon told her to pay for an ambulance to the hospital, she says. She couldn’t afford it. Instead, she got a ride from a friend.
“When we hear about deportations and family separations in the news, yes, these things empower employers to mistreat people,” Lopez says. “That’s what happened to me.”
Finally, Lopez says, she discovered he had shorted her pay by $28,000 over more than eight months last year. She quit and filed a wage-theft claim with the state. On her last visit to the store to give Dhillon his keys, the owner issued an ultimatum, she says: Drop the wage claim or face immigration agents. She says he told her: “If you hurt me, I’ll have to hurt you back.” Lopez added a retaliation claim to her complaint; it was settled for $5,000. The wage claim is pending. Dhillon didn’t respond to repeated requests for comment.
Traditionally, the United States has been viewed as a sanctuary for victims of labor trafficking.
By law, immigrant victims can apply for special “T” visas that allow them to work in the country for four years and apply for permanent residency. Historically, even if such a trafficking visa was denied, applicants for them were no worse off. But that ended this year.
Trump’s administration announced in June that anyone rejected for T visas must appear in immigration court for deportation proceedings. Meanwhile, according to immigration and labor lawyers, the government is making it harder to qualify for T visas.
Federal law says that “any credible evidence” will be considered in establishing whether an immigrant worker was a victim of trafficking — language that has given applicants wide latitude. But now Trump administration officials are peppering applicants with requests for evidence, effectively revoking any benefit of the doubt, attorneys say.
In July, the administration rejected an application from a 24-year-old man who claimed smugglers spirited him and his family across the border when he was 6. The government said immigrants who volunteer to be smuggled put themselves in position to be trafficked and aren’t entitled to restitution without evidence of extreme abuse. The man’s claims — that his father was forced to work as a day laborer without pay, while he cleaned bathrooms, handling bleach without gloves — weren’t severe enough, officials said.
Such new hurdles have made some workers scared to apply. Maria, a Filipino domestic worker who asked that her last name not be used, was brought to Boston last year from the Middle East to care for a family’s four children. Her contract specified she’d work 40 hours a week, with two days off, for $2,500 a month. Instead, her employers paid her $550 a month to work 110 hours a week without breaks, she says. The family held her passport, forbade her from leaving the house alone and prevented her from having her own phone, Maria says.
Now, having found her way to a Boston legal aid group that could help her, Maria faces an agonizing choice: Should she report the family and apply for a T visa, work illegally in the United States, or go home to the Philippines?
“Here we have somebody who’s been through an incredibly abusive situation that absolutely fits the definition of labor trafficking,” says Richardson, the lawyer with Greater Boston Legal Services. “Yet it’s incredibly stressful because we don’t know what Trump’s [Department of Homeland Security] will do.”
In their trafficking claim against Munger, the Mexican guest workers in Washington state claim that managers forced them to work with “a common scheme of threats and a common practice of abusing the law to keep workers in the fields.”
The threats of repatriation were so institutionalized that workers came to believe they had no choice but to suffer abuse or find their way home, says Joe Morrison, their Seattle attorney. They also knew that by leaving early, they would risk being blacklisted by labor recruiters for other U.S. companies.
Oscar Contreras is back in Nayarit, earning about $60 a week as a construction worker and dreaming of the college degree he’d hoped to pursue. He didn’t hear from Munger’s recruiter this year.
He’s hoping for the best from the workers’ suit, filed as a class-action claim in Seattle, but the monetary damages “are almost secondary,” he says. “The families just wanted an apology or some kind of recognition that what they did was wrong.”
Munger has said it did nothing wrong. It says the work stoppage after Ibarra’s collapse wasn’t a strike at all, but just dozens of laborers who were all late for work on the same morning and were therefore fired for insubordination.
Sampedro, the supervisor accused of sending Ibarra back to the field before he collapsed, said in a court affidavit that many workers were already sick when they left Mexico and “accepted the position simply to try to obtain free or low-cost medical treatment.” He said that all workers’ medical complaints were taken seriously and that he or his assistant made as many as 15 trips with workers to the doctor that summer.
After Ibarra’s death, investigators with the Washington state Department of Labor and Industries interviewed dozens of the workers. Many said they felt forced to work while sick and injured, according to state investigative documents obtained by Bloomberg. “Many workers expressed that they did not report anything due to fear,” one investigator wrote in a memo. “Workers were told if they caused problems or complained about anything they would never be contracted to come back to work.”
The state fined Munger almost $146,000 for providing insufficient breaks and meal periods, the largest fine ever levied for those violations in Washington state. A local lawyer, serving as a temporary state judge in Bellingham, Wash., near Sarbanand Farms, cut the company’s fine in half. He cited the fact that the company kept good records.
Mehrotra, Waldman and Levin write for Bloomberg.