The Economic Policy Institute (EPI) has a new report examining the free-fall in Department of Labor (DOL) investigations into farmworker abuse, which dropped to a record low of 879. 879 closed cases when hundreds of thousands of H-2A employees are working every year. This continues the trend of “see no evil, hear no evil” of the Trump Administration, when only 1,036 cases were closed annually. Part of the explanation for this is the fact that the number of foreign workers admitted to the United States annually exponentially exceeds the number of Federal investigators available to oversee their working conditions. So, the millions more the Biden Administration is welcoming at the border are only being ushered to their doom.
“The low number of investigations means that most farms are never investigated by WHD; fewer than 1% of agricultural employers are investigated per year. However, as our previous report showed, when WHD does investigate an agricultural employer, 70% of the time, WHD detects wage and hour violations.”
What this means is that enforcement of the law is statistically non-existent. The DOL, which consistently places agriculture in the Low Wage/High Violation industry list, has abdicated responsibility for enforcing H-2A labor standards and Federal labor standards generally. Not surprisingly, the evidence of forced labor, indentured servitude and wage theft is found across the agricultural sector.
The Wage and Hour Division (WHD) of the DOL has 810 investigators, total. They are responsible for 165 million workers. That amounts to roughly 202,000 workers per investigator. In these circumstances, the regulations governing treatment of employees are not worth the paper they are printed on.
That this is a major problem as labor exploitation skyrockets should not be in dispute. There is no doubt about the rising level of exploitation in this environment. Employers are exploiting foreign and domestic workers at alarming rates. They are doing this because there is statistically zero chance they will be punished. For those unlucky few who are punished, the fines are miniscule compared to the financial gain from exploitation. Most are not even barred from importing more cheap labor to exploit when they are caught.
EPI offers some solutions to this crisis, but they miss the mark. They recommend funding more investigators at WHD and legalizing illegal immigrants. The amount of funds required to expand out the WHD workforce necessary to adequately investigate employer violations is astronomical. While it is plain that there needs to be more investment in enforcement resources, it is unclear why taxpayers need to expend such resources when we could just as easily reduce the number of foreign workers, instead. There is no reason for such a huge and perpetual investment to maintain the flow of foreign workers for unscrupulous employers. Not only would taxpayers be on the hook for the salaries and benefits of a massive WHD workforce, but in addition, the investigations themselves are expensive to conduct and take up administrative and court time.
As for EPI’s amnesty proposal, it is nonsensical. The basic argument is that conferring legal status would reduce exploitation of employees. However, EPI has extensively documented how H-2A legal foreign workers are exploited regularly. American workers are being discriminated against and exploited as well. The labor exploitation economy is indiscriminately targeting all workers with no respect to legal status. Amnesty is thus irrelevant to combatting labor exploitation. Even assuming that granting legal status would be effective, the better strategy would be implementing policies that encouraged hiring American workers. If citizenship leads to less exploitation, the goal should be to push employers to hire Americans as opposed to granting citizenship to millions of foreign workers.
In truth, the answer is in reducing the number of foreign workers admitted and eliminating the black market in labor. The United States cannot hope to regulate effectively at the current scope and scale of foreign workers trafficked into the United States. EPI makes it clear that our immigration system has flooded the zone such that labor enforcement is impossible. The solution is to reduce the number of foreign workers to a number we can reasonably manage. In addition, instituting mandatory nationwide E-Verify would all but eliminate the black market in labor. Between reducing the legal numbers to a manageable level and using E-Verify to dry up the black market, the Federal government could reduce the labor exploitation wildfire raging across the country. This is the only path to labor market fairness for both foreign and American workers.
JARED CULVER is a Legal Analyst for NumbersUSA
Updated: Thu, Sep 21st 2023 @ 3:30am EDT