Legalized Exploitation

[F]law School Episode 13: The Migrant Trap

Izza Drury

March 17, 2025

Summary:

In this episode of [F]law School, hosts Molly Enloe and Gauri Sood dig into the hidden realities of the H-2A visa program with guest Izza Drury. They explore how this legal framework—marketed as a pathway for temporary agricultural work—is, in practice, a system that traps migrant farmworkers in cycles of abuse, wage theft, and corporate exploitation, with little to no legal recourse.

Editors:

Special thanks to Shyun Moon for audio editing assistance, Giovana de Oliveira  and Nelson Reed for production assistance, and to Mirei Saneyoshi for technical assistance and show notes.

Guest Bio:

Izza Drury is graduate of Harvard Law School, Class of 2024. Izza graduated from Brown University in 2017 and prior to law school worked to advance migrants’ rights in France, Greece, and the United States. Izza is from Vinalhaven, Maine.

As of 2025, Izza is a Public Service Venture Fellow working as a trainee at the European Court of Human Rights in Strasbourg, France. While at HLS, Izza served as a Project Leader for Advocates for Human Rights, was an Assistant Managing Editor at the Harvard Human Rights Journal and participated in the Harvard Immigration and Refugee Clinic.

Music:

Our theme music is “I Been Waiting” by Crystal Squad, and you’ll also hear segments of “Palms Down” by Blue Dot Sessions.

Related [F]law Resources: 

Additional Resources (regarding topics mentioned in podcast):

scales - Logo for The [F]law

scales - Logo for The [F]law

Transcript 

 (This transcript was created by an automated process and contains errors.)

Flaw School – Episode 13; Season 1 – The Migrant Trap

with Izza Drury, Molly Enloe and Gauri Sood 

Kingsfield from The Paper Chase You come in here with a skull full of mush, and you leave thinking like a lawyer.

Alan Greenspan I found a flaw in the model that I perceived as the critical functioning structure that defines how the world works, so to speak.

Izza Drury and the housing that they’re provided is truly abhorrent. There’s instances of tick -infested houses, one or two functioning toilets for many, many different people, no showers, sort of a spigot, just kind of really unthinkable levels of squalor that individuals are being expected to live in after having been told they will be provided accommodation. and are in an entirely new context in a rural environment often and therefore unable to seek other accommodation. 

Jon Hanson Hi everyone! This is Jon Hanson from the Systemic Justice Project and The Flaw Magazine at Harvard Law School. The U.S. agricultural system depends on migrant farmworkers. Yet behind the legal framework that brings them here—the H-2A visa program—lies a system built for exploitation. In this episode of Flaw School, hosts Molly Enloe and Gauri Sood sit down with Izza Drury to explore how the law itself enables stolen wages, forced labor, and unchecked corporate power. Izza untangles the workings of this complex and opaque program, revealing how it operates in obscurity—shielding corporations while keeping workers powerless. She traces the deep historical roots of this system, drawing a throughline from today’s oppressive labor practices back to the Bracero Program, guestworker schemes, and even chattel slavery.  And she reveals how corporations amass profits while farmworkers are stranded with no path to justice. It’s a conversation about law as a tool—not for protection, but for exploitation. Welcome to Flaw School: the podcast about the flaws in the law.

Molly Enloe Hey, welcome to Flaw School, a podcast that explores the flaws in our legal system. We’re today’s hosts, Molly Inlow, a 1L at Harvard Law School. 

Gauri Sood And Gauri Sood, a third year at Harvard College. And we’re so excited to be hosting today’s Flaw School episode. Every two weeks, we interview law students to uncover the role of corporate actors in producing many of our most urgent social problems and the troubling tale of corporate actors shaping, bending, capturing, and breaking the law in their favor. In this episode, we’ll be discussing exploitation in the H-2A Migrant Farm Worker Program.

Molly Enloe Today, we’re joined by Izza Drury. Currently, Izza is a public service venture fellow working as a trainee at the European Court of Human Rights in Strausburg, France. While at HLS, Izza served as a project leader for Advocates for Human Rights, was an assistant managing editor at the Harvard Human Rights Journal, and participated in the Harvard Immigration and Refugee Clinic. Welcome to Flaw School, Izza. Thanks so much for having me. So Izza, I was hoping we could start off just giving the listeners a brief background on how you got into human rights work.

Izza Drury Yeah, absolutely. Um, there’s sort of a specific inflection point actually for me. When I was an undergrad, I studied environmental studies and was attending a UN conference in Paris in 2015, the conference of the parties. And a friend of mine was French and was concurrently in France, in northern France, working at a refugee camp. And he posted about it on Facebook back when that was common and published photos of sort of masses of tents in this muddy field in northern France. and spoke about how there were tens of thousands of unaccompanied minors across Europe and kind of really concretized what the migrant experience was in 2015. And I remember being like really so profoundly shocked about the reality and kind of just couldn’t get it out of my head. And so the next summer I went to Calais, planning to spend 10 days working there and ended up not returning to school for a semester and staying for five months and helping to run a community kitchen. And during that time, I was really confronted with this sort of violence that is visited on people who are fleeing or seeking safety or simply crossing national borders and how that experience of a fortress border can be so violent and the sort of surrounding geopolitical reality that can animate that sort of human consequence. And following that, I’ve really kind of been interested in and working on migrants’ rights issues. the U .S. and abroad. And how did that path lead you to law school? So I went back to the U .S. after working in Calais, France, and I finished my undergraduate degree. And after that, I went to Chios, Greece, which is an island in the eastern Aegean, and I worked and I volunteered at a refugee center. And so there are sort of hotspot camps on the Greek islands. where people were intended to move through very quickly and have their applications processed very quickly, but often got stuck for months, months at a time and really highly vulnerable situations with not sufficient sanitary or accommodation. And often individuals were in need of a lot of sort of protection services due to the lack of resources available to them in part because they were. deprived of their liberty and sort of structurally created to be dependent in that way. And in that process, I worked with a lot of lawyers and they did a lot of family reunification cases. Most of the people I was working with were women traveling with young children whose partners were already in Europe. And so the lawyers I worked with were really very sort of instrumental in actualizing this family reunification and getting people through this sort of violent border more quickly. And because of that, I decided that I wanted to become. a lawyer. And so I have been both working in immigration and refugee clinic while I was a law student and also on human rights issues, thinking about sort of basic human rights in the identity of being a migrant and also migrant services as in processing family reunification or asylum claims. 

Molly Enloe Really awesome work, Izza. Seems super interesting and really in line with the topic of your article. I did just want to get a little bit from you about what inspired you to write the article, how you kind of came across the visa program that you really dive into.

Izza Drury Yeah, so I actually was kind of doing just a little online research and came across a class action lawsuit that was filed in Canada actually, almost exactly a year ago, it was February, 2024, when the sort of press release was published about a class action lawsuit on behalf of a really large class of migrant workers in Canada. They were suing the Canadian government for unjust enrichment. based on their payment of employment insurance premiums, and they were then not permitted to ever access any of the benefits of the program because of the structure of their visa program. And the settlement was for $500 million, pretty significant amount of money, and the class was really large. The class action is moving forward in Canada. And so I spoke with some of the lawyers who were working on that case. And they were the ones that initially made the connection between that case and the programs in Canada and the H-2A program here in the U .S. And so I was initially thinking I would write about that case and kind of the significance of that type of sIzzable class action. But then when I learned about this kind of parallel program, I thought that it might make more sense as someone who was studying law in the U .S. to look at how the U .S. sort of statutory regulatory program was working.

Gauri Sood That’s super interesting. And I think our listeners would find it useful before jumping into the nitty -gritty and some of the lawsuits that have come out of the program in detail, if we could go a little bit into a background and general overview of the H-2A program and sort of how it differs from other work visas like the H-1B, for example.

Izza Drury Absolutely. So the H -2A program, you know, at its highest level is a temporary visa legal authorIzzation to enter the U .S. and stay for a certain amount of time to conduct farmwork or agricultural work. And so the thing that’s really specific about H -2A is that it is agriculturally, it’s focused on agriculture industry. There’s also an H -2B, which is temporary work in the US, seasonal work that is non -agricultural. And then you have H -1B, which is for sort of more technical, professional, like sort of specific types of guild, if you will, labor. So that means there’s very specific eligibility requirements for H -1Bs and that sort of higher education and other types of prerequirements that must be proven in order to have a job be sort of qualified as eligible to receive H -1B workers. So that’s sort of narrowing in on the H -2A program, there’s other sets of requirements as well in order to have a job or a grower or actor in the agricultural industry be able to seek and obtain authorIzzation to bring in workers under these visas. And so that requires proof that there are no U .S. workers who can fill those jobs. and demonstrating that bringing in these workers will not be displacing any domestic workers. That’s sort of the first threshold requirement. And then additional to that, the workers apply for, they get certified for a certain number of visas and then not all of the visas are filled. You’ll sort of look at the graphs of the number of visa applications and the number of visas issued and there’s often a little bit of a disparity there. And then H-2A workers, when they come in, there’s a set of regulations that govern what rights they have. And so those are pretty robust on paper. So some of those rights include the right to have their transportation costs covered. They call it inbound and outbound transport from their country of origin, international flights, et cetera. They are entitled to accommodation and transportation to the workplace. And they’re entitled to something called the adverse effect wage rate. which is actually kind of an interesting piece of this study. So we’ll take a second to kind of explain some of the details, but the adverse effect wage rate is a really key part of that initial threshold requirement that there’s no other domestic workers that could take those jobs. And the adverse effect wage rate is really crucial in making sure that workers coming in from other places are not going to be paid less and depress the wages of other farm workers. in the US. And so maybe there’s not enough workers to fill the job, but the adverse effect wage rate is also to make sure that if other farm workers are coming in and being paid less, that would then depress other workers in the region or in the area. So there’s this effort to hold the wage higher to make sure that doesn’t happen. So that’s sort of the broad framework of what the regulations require and the kind of basics of the program.

Molly Enloe Super helpful, Isa. Isa, you mentioned in your article a quote from the House Ways and Means Committee Chairman, Charles Rangel, from 10 years ago, in which he called the H-2A program the closest thing he’s ever seen to slavery. I was wondering if you could touch on how the program has changed since then, or whether we’re seeing a lot of the same abuses now.

Izza Drury So I spoke with Mike Rios, who was a regional agricultural enforcement coordinator for the Department of Labor in the Southeast region for 27 years. And he actually used that same term, the closest thing he’d seen to slavery or practically slavery, last year when he was describing a report that he had commented on that sort of outlined some of the abuses in the system. And he also said, you could throw a rock and hit a violation in the agricultural industry and that there’s sort of abuse baked into the system. And interestingly, and we’ll maybe talk a little bit more about this later on, but in the article you can kind of see this broader kind of global context and there’s a historical precedent as well. And so there’s actually a documentary called The Harvest of Shame, which I’m not necessarily sanctioning. I think there’s certainly some journalistic practices that are extremely out of date. But I still think there’s some interesting details about migrant labor in the US that are captured in that documentary. And in that documentary, an observer uses the same phrase again. So I guess to answer your question, yes, we’re absolutely still seeing that type of abuse in the system. And that type of analysis very much still holds today.

Molly Enloe And could you share what some of those harms have looked like under the program as it stands how that’s sort of manifesting?

Izza Drury Yeah, so there’s a couple of different kind of cateGauries of harm and abuse that are pretty common in the H-2A program. The biggest by far is wage theft. So there’s a lot of different ways in which that happens and I can speak a little bit more about kind of the specific manifestations. For instance, as I mentioned at the beginning, part of the incentive to come from another country to the US to do this work that no one else is doing. is that you’re not gonna have to pay for your plane ticket. You might be coming from a place where you have a pretty high level of poverty and you do not have the savings to foot that bill. And you’re told that you will be compensated for that. So you take out a loan, borrow money from family and friends to pay for that on the expectation that you will be reimbursed for your international plane ticket. That often doesn’t happen. And that amount of money can be hugely significant in terms of the workers that we’re talking about. Another way, another really common form of wage theft is speaking about this adverse effect wage rate. To give a little bit of context, when workers in the agricultural industry are working in the fields, they’re often harvesting fruits and vegetables. And it’s very common in the agricultural industry to be paid by the piece, like the individual piece of fruit or vegetable. So if you’re being paid a piece rate, you may not be able to harvest enough pieces to meet the threshold of the adverse effect wage rate. That means under the H-2A program, your employer, which we’re going to talk more about who that is, is obligated to supplement your wages to meet that threshold. And the point of that is to prevent the depression of other farm workers’ wages. And there’s an interesting anecdote from one of the lawyers that I spoke to. He had clients who said that when they were paid and issued their pay stub, the employer highlighted the supplement on the pay stub and said, this is my money, give it back and would take that money back. And so you have this kind of combination of different things. Other types of wage theft include sort of making people pay for their own transportation, putting their accommodation far out of town and far away from any type of place where it’s like in a food desert or just in a very rural area. Sort of more basic, if you will, but very significant in terms of just basic human dignity, which then means you have to pay out of your very your own pocket, your wages that you’ve worked extremely hard for, just to sort of be able to eat and live in a decent sort of condition. Which brings me to the next type of bucket of harms and abuse, and it is the accommodation. So many workers don’t have the funds to pay for their own accommodation. And the housing that they’re provided is truly abhorrent. There’s instances of tick -infested houses. One or two functioning toilets for many, many different people, no showers, sort of a spigot, just kind of really unthinkable levels of squalor that individuals are being expected to live in. After having been told they will be provided accommodation and are in an entirely new context in a rural environment often and therefore unable to seek other accommodations. A couple of other more nefarious and sort of harrowing types of abuse have to do with health and safety conditions and with sort of more intense forms of trafficking. People will have their passports taken. And in a lot of these cases, individuals are stopped and surveilled and asked for documents. And so their passports are taken from them in a real clear form of control to prevent their movement, to prevent them. seeking accountability from contacting any type of authority, and so that’s one type of way in which they’re then rendered pretty powerless and under the control of their employers who can then rent them to other types of farmers, and it’s a real sort of clear form of trafficking and sort of forcing people to work when they’re outside of their contract and then not paid. and then other sort of health conditions where there was a story, a really tragic story a couple of years ago, there was just reporting out in the last couple of months where the investigations are closed, but questions remain unanswered related to the death of a farm worker in Michigan. He arrived and a few weeks later, became very violently ill and was ultimately quickly sent back to his home country or he died a few weeks later. And the investigation, the state investigation, initially suspected that it was due to exposure to pesticide. And then a doctor who looked at the autopsies guessed that it might have to do with heat stroke. But the investigations resulted in a ping -ponging of responsibility between different agencies and never resulted in a conclusion. So that type of story is also not entirely uncommon, where individuals are subject to conditions that are just completely untenable, including extremely high heat exposure to extremely toxic chemicals, and moreover just the constancy and the intensity of the work. There’s anecdotes of people being forced to work starting at five or six in the morning until five or six in the afternoon for many, many days in a row, and that type of labor is just not sustainable and can have very, very negative health consequences. So yeah, so I think each of those things happens often, and each individual often experiences them together, creating this very, very harmful and abusive system.

Molly Enloe Izza, you mentioned in your article that the H-2A program isn’t the first time that structurally precarious workers have been relied on to inflate corporate profits. Could you talk about some of the other models historically in the U .S. and how the H-2A visa program relates to those? Yeah. I think we’ve mentioned…

Izza Drury couple of times the references back to chattel slavery in the US, but there’s a more recent sort of predicate example called the Bracero Program, which I think is a very tangible illustration of that type of continuity over time. The Bracero Program ran from 1942 to 1964 and was a bilateral agreement between the United States and Mexico, very much like the H -2A program where. temporary farm workers would come and work in the United States and return to Mexico. The program was similarly very abusive, and there’s been a lot of different oral histories that kind of chronicle some of that harm. But one of the things I think that stands out is both the level of racism that individuals experienced in that program, harassment, et cetera, and also the health and safety concerns. In particular, at that time, there was a lot less awareness about the consequences of chemical fertilizers and pesticides, and many of these workers were actively deploying them or engaging with them without proper protection. There’s a lot of anecdotes about the harms that have arisen in that context as well, and the really very serious health consequences that arose from that program.

Gauri Sood It sounds like the structure of the program itself is contributing to a lot of these rights violations and also to the labor contractor’s ability to get away with them. So I think it would be useful to pull apart some of the specific mechanisms within the program and analogous programs in other countries that are contributing to these rights violations that we’re seeing, as well as the under enforcement of the protections that are meant to prevent these kinds of harms.

Izza Drury So, I think there’s a coupleof different facets to that question. One having to do with sort of the broader structure of the program and others having to do with some statutory and regulatory legal technicalities. So I’ll start with the broader structure of the program. So as I mentioned before, an employer needs to petition to have a position approved to be filled by an H-2A worker to petition for the visa. So who that employer is becomes very, very important because that is the… initial point of contact between the worker and the broader system. And who that person is is very rarely the actual farmer or grower who is benefiting, who is profiting from their labor. So you might have a citrus grower. There’s a pretty high concentration of H-2A workers in Florida in the citrus industry, so that’s a case study that I’ll use when speaking about this. You might have a citrus grower who hires someone called a farm labor contractor who then is the legal entity that puts their name on the H -2A visa. So the citrus grower is the business here. They’re the ones that need the work. And they have hired a third party to get them labor. And that third party petitions for the H -2A visa. Now that third party is actually not often a sophisticated business. it is actually often a former migrant worker themselves, and some of them are not even citizens, and often maybe have risen through this program themselves and have discovered that they can kind of put themselves in a slightly different position in this structure. So you’re beginning to immediately see that there’s this layering that’s happening between the entity that is sort of more sophisticated and more established, i .e. possessing of assets and income, and benefiting from this labor such that the workers have no legal recourse to get to that entity. And the farm labor contractor sort of sits in between them. And we can talk a little bit more about all of the different ways in which it’s challenging to access the entity for whom you are actually working for on a legal sense. But that’s kind of the three -part structure that we’re working with.

Molly Enloe It seems very complicated as a structure. I think it might be helpful for listeners to get a better sense about who’s legally liable for these harms. Is there a way to hold agricultural businesses who use the labor of H -2A visa holders responsible for some of these harms? Or does most of that fall back on the contractors? That’s such a good question.

 Izza Drury question. And that’s exactly kind of the intended role, it seems, of these farm labor contractors is to particularly outsource some of that liability from the actual corporate entity who might be profiting. And before I dig into some of the statutory framework related to that, I want to note also that in this context, the grower isn’t even the sort of biggest Session upon there’s often much, much bigger transnational corporations who are buying from the growers, i .e. Kroger’s or Walmart, or some of these big names that you’ve heard of, who are then actually really setting the price. So we’ll speak a little later maybe about some of the tactics that are used by workers who are organizing related to some of this type of awareness in the industry. But I wanted to note as well that this grower isn’t even the sort of final stop. But in terms of the statutory framework… First, it’s helpful to note that H -2A workers are not eligible to file suit under some of the different private causes of action, the Migrant and Seasonal Agricultural Worker Protection Act. The migrant in that act is referring to domestic migrants, people who are US citizens and who move around in the country. They are not referring to non -citizen migrants. So people cannot sue under that, which is kind of a large bucket of different, of types of advocacy that is not available. Second, and back to this question of the farm labor contractors, as I mentioned, who employs the H-2A worker is very important. And that term employer is mentioned many times in the legislative framework that sets up the program, but it is never defined. So now getting in a little bit into the statutory structure that is actually governing the H-2A workers. And so first, reiterating that because they’re not able to bring private causes of action under these statutory provisions, much of what they’re doing and the ways in which they can seek legal accountability is through contract law. So seeking accountability through contract law often means that you’re suing your employer, almost always means you’re suing your employer directly for a breach of your labor contract. Now in the context of H-2A workers, who their employer is, is the person who petitioned for and signed their visa. This means that the question of the farm labor contract looms really large. in the context of the contract law cases, noting again that those statutory other provisions are off the table for H-2A workers. When thinking about this tripartite structure, where there’s often this larger, more sophisticated business of the grower or the farmer, and a middle person who is the farm labor contractor, who, as mentioned, is often a former farm worker themselves, maybe someone who doesn’t necessarily have a very sophisticated business. In some cases, I’ve even heard lawyers refer to it as a shell company, where it has no assets, there is no income, it is literally just a legal entity. for the purposes of being the contractor to hire and employ these H-2A workers. So in the context of contract law, it becomes very, very important who is the ultimate employer that is accountable for those breaches of contract. In the context of other statutory frameworks that H-2A workers are eligible to sort of seek accountability under, There’s the statue that creates the program. called the Immigration and Nationality Act, the INA does not define employer. That’s really important because most statutes define the term employer as described and who that person is is critical to figuring out whether or not they can be sued. So as described in this tripartite system, the question then becomes, can a worker sue the grower who may be the one that actually has resources and assets and could pay their wages that they were denied, or could reimburse them for their flight that they were not reimbursed for, or is their employer only the farm labor contractor who signed the visa and brought them in as their sort of legal contractor?

Molly Enloe I think it might be helpful for us to let the listeners know that in statutes, oftentimes there is a definition section that’s providing the baseline definition for those words. And the common law is judge -made law that if a statute sort of doesn’t include that very clear definition of here’s what employer means in this statute, the common law is the long history of the way the court has interpreted what employer means. just to give that baseline for some of our non -legal listeners.

Izza Drury Yes. The Supreme Court has said that where Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, and again the statute has not dictated, that Congress means to incorporate the established meaning of the common law term. So the Fourth Circuit actually made this determination in a case called the CSL is Tina versus Reese. And the short sort of overview is that they came out saying that the grower is not a joint employer of the farm worker. So the case was not very helpful for those who might be seeking to advocate for an H-2A worker. And the way in which that happened is that there were two possible definitions of employers that the court could pick from. There was a broader definition in the Fair Labor Standards Act, and there was a narrower definition in the common law. In light of the fact that. the Supreme Court has said that when Congress uses a term that has accumulated settled meaning under the common law, a court must infer that unless the statute otherwise dictates, and again the INA does not define employer, Congress means to incorporate the established meaning of the common law term. So the court applied that logic and used the common law meaning of employer and found that the grower, this was a citrus case. like a case involving a citrus grower, was not a joint employer. In a way that sort of stings in this case, they did find that if they had used the Fair Labor Standards Act definition, they would have been a joint employer and they could have sued the larger entity for breach of contract, but they couldn’t because they applied the common law standard. So this sort of technical nuance ultimately just means that there is a layer of legal insulation between the person who is working on a farm and the entity who is profiting off of that labor. So ultimately, all of that is to say that H-2A workers who are employed by farm labor contractors, or whose only method to seek accountability for wage theft and other violations, and in the case of a successful decision, that farm labor contractor might not have any assets to actually fulfill their back wages.

Gauri Sood Okay, so of all of the forms of abuse we’ve been talking about for workers, I’m sort of interested in hearing about wage theft and how workers might realistically go about remedying any wage theft that they have experienced within these structures.

Izza Drury Yeah, so there are cases where workers are successful under contract law claims, or the farm labor contractor has sufficient assets to settle those claims, or there are in fact some workers who are not brought in under farm labor contractors, but are in fact technically legally employed by the grower or the farmer. But in those cases, when they have successfully made a breach of contract claim and reached a settlement or had a decision in their favor, and they are awarded back pay or compensation in some form, it’s actually even very, very challenging for those workers to receive that money, even if the Department of Labor has it. And that’s because a lot of these contractors or employers don’t maintain up -to -date lists of the contact information of these employers. and litigation. As you may know, it was a very slow process and so many years may have passed. And a lawyer that has been working on this for a really long time who I spoke to, his name is Gregory Shell, he and his wife actually went to Mexico to try and return back wages to a collection of workers who had successfully won a case. And they found it to be extremely difficult to actually even find and contact the individuals who are entitled to that, their back wages. And Mike Rios, who I spoke to, who was an enforcement officer at the Department of Labor, mentioned the same thing, saying that it was very, very hard, even in cases where there were judgments and settlements, for the workers to actually get their money back.

Molly Enloe super helpful to sort of understand how both outside and before the legal system the structure of the visa is perpetuating some of these harms but also how within the legal system there’s these barriers to making sure that people receive the remedies for the harm that they’ve suffered. I’m wondering if you could help transition us into understanding some of the organizing that’s happening around these harms in the H -2A visa program and how people are currently trying to combat some of the things that we’ve discussed in this episode.

Izza Drury Yeah, so I think that’s sort of the second facet of the structure that makes accountability very hard, is that traditional labor organizing is less effective in this context, or can be. And there’s a couple of reasons for that. So coming back to this idea of the kind of tripartite structure, where there is the technical employer and then there is sort of the larger business entity. And then even above that, there is maybe a larger corporate. conglomerate, who’s setting the prices for the product that the farmer is growing, which means that in a traditional sort of labor negotiation, where a worker negotiates with their employer for various better terms, etc., the farm labor contractor isn’t really in a position to facilitate any of those agreements. They have very little leverage to actualize any of that, any of those demands themselves. So the farm labor contractors sort of lack of sophistication, assets. control over the situation, kind of cuts in both directions. They are then unable to pay out workers and they are also unable to sort of ask for better treatment because they themselves don’t have much leverage in the process. And so it’s this layer in between them, which then again, makes it much harder to reach and negotiate with the entity that might actually be able to respond to a worker strike, for instance. So there’s an interesting case study of. organizing around this type of structure in the agricultural industry that I can give you a bit of context for. It actually happened many years ago in the 80s. It was the first time there was an actual tripartite negotiation. So, Baldemar Velasquez was the founder of the Farm Labor Organizing Committee and an AFL -CIO affiliate. And the organization in recent years has had some complicated challenges. but I was able to speak to Baldemar and he described some of his work as farm labor advocate and as a migrant worker himself. And in the 80s, he led a boycott of Campbell’s soup, which was the larger entity for whom the growers were producing tomatoes. And he led a boycott of them, which would ultimately bring them to the table to a negotiation. And part of that boycott was the 600 mile march, of 100 farm workers from Toledo, Ohio to the Campbell’s headquarters in Camden, New Jersey. And such action helped to pressure its sort of corporate entity to come to the table. And in my conversation with Baldemar, he had some interesting anecdotes where he mentioned that it was when they were negotiating, the tomato growers had to form a tomato growers sort of organization to represent their interests in the negotiation. And when they started, there was the workers on one side of the table, Campbell’s soup and the tomato growers on the other. But as the negotiation went along, the tomato growers moved and sat to their own side. So it truly became like a three -part negotiation. And that sort of helps to kind of physically even illustrate the way in which this is a multiple layered system where the immediate, the next biggest fish isn’t even necessarily who you need to go to, to really get justice in this system. I thought that was really interesting and I spoke to someone, Edgar Franks, who is currently organizing with a union in Washington in the Pacific Northwest. He mentioned a challenge with the farm labor contractors and that they were extremely complicated to overcome. There’s this sort of new effort, perhaps, as the use of farm labor contractors emerge. different entities kind of come together to deploy different types of strategies, like the one that Baltimore’s union had used a long time ago, and to bring other actors to the table in these types of negotiations. But that’s obviously extremely difficult and the boycott that was led very different geopolitical time, and also it took eight years to get them to the table. So that type of work takes a long, long time. and the H -2A program, you know, workers come through very quickly and… for various reasons often participate in the program for only a certain number of years. And so that type of like structural unionizing and organizing can be very, very difficult in the context of H-2As. And another facet of sort of traditional organizing that is very complicated in the context of H-2As is that there is actually a use by different entities of H-2A workers to break strikes. Because if domestic farm workers are striking, H-2A workers can be brought in to fill their roles, to scab ultimately. And then there’s this kind of frustration about that. And local workers are very angry that their strike is less effective because they’re being replaced by H-2A workers. So there’s almost a tension there that makes bridging that tension kind of complicated in the context of labor organizing. Although the union in the Pacific Northwest does actually represent both. domestic farm workers and H-2A workers. They have them under a collective bargaining agreement in some contexts, but some of those challenges are why it’s also hard to rely on other types of more traditional kind of labor organizing strategies to redress some of these kind of structural abuses or bargain for better wages, conditions, etc.

 Molly Enloe Izza, it seems like there’s a lot of work being done in the organizing space. Is there anything that’s being done with new regulations or structurally from the government’s side that’s trying to address some of these harms? 

Izza Drury Yeah, there’s definitely an awareness of some of the problems in the H-2A program, and as mentioned a little bit, there’s an awareness that it’s also not necessarily that effective for farmers. So I think it’s definitely a space to watch and to sort of see how possible remedies and reforms can be made. The Department of Labor last summer actually published a new rule seeking to make some changes to protect H-2A workers a little bit more. and a coalition of growers and farmers actually sued to enjoin that. And litigation is ongoing, but it’s definitely a program that is ripe for reform as one of the farm worker advocacy organizations noted, and definitely one in which there’s a lot of attention as the reliance on the program is continuing to grow. So it’s a very rapidly evolving space or one that is continuing to shift. So as we think about changes in advocacy, Continued statutory and legal changes are certainly

Gauri Sood likely on the horizon. Awesome, thanks for the insight on organizing, particularly in the U .S. I think it would also be helpful to revisit the Canadian class action lawsuit we mentioned earlier on. Do other countries have programs that are similar to the H-2A visas? And if so, are these programs also struggling with similar issues of abuse?

Izza Drury So there’s many different models of guest worker programs around the world, and a couple of them are mentioned in the article. There’s the Kavala system that’s used in some of the Gulf states. There’s many different types of systems used in parts of East Asia and Southeast Asia. But the system that I’m most familiar with is the seasonal agricultural worker program in Canada, which is in fact very similar to the H-2A program here in the U .S. but there’s some different aspects of it. that I think are worth highlighting. And as discussed, the H-2A program is certainly very flawed in many ways, but you can kind of then start to see how that each program requires almost a unique approach because they each have different flaws or structural harms. For instance, in the Canadian program, workers are not permitted to ever bring their families. In the H-2A program, and H-2A workers are technically. eligible to file for visas to bring certain dependent spouses and children with them. Presumably that is very rare. Not very many of the advocates I spoke to ever really mentioned that being a part of what the H-2A experience looks like, but that is in fact a legal pathway that exists. Whereas in Canada, one of the things that one of the advocates I spoke to mentioned is that there is a significant level of isolation, and in part due to the rural nature of Canadian agricultural industry. one of the ways in which that program is particularly nefarious and harmful is that individual workers are taken far out into rural parts of Canada and are forced largely to like live and work on the farm and don’t have any type of transportation. They are unable to leave. And there’s anecdotes of individuals sort of sleeping in bunks next to the greenhouse where they were working all day. many, many hours a day, no privacy, sort of very much, you know, stuck in this place. And that reality is particularly harmful because so much of this program has really sort of overtly racist roots. And most of the people who are working there are from the Caribbean and parts of in America and our black and brown people who are coming to a majority white area and are experiencing high, high levels of racism, including different domestic ordinances that have been passed to prohibit loitering or to prohibit certain other structural access to different just basic resources in town. So you’ll often see this like very kind of like visceral othering where individuals will be kind of kept. on this farm all week and then one day a week will be brought in on a yellow school bus and kind of just like dropped in town for a couple of hours to do all of the things they need to do for the week including going to the bank, grocery shopping like anything that they need to do for themselves and then you have these kind of like loitering laws or these like anti -access laws you can’t come to certain places at certain times and it’s extremely targeted against these workers, who are also then subject to… racial abuse in that process. And so that’s a manifestation that might be a little bit different than in the US where there’s maybe like less rural contexts or individuals are moving around more or closer to just being in a town and are kind of less structurally dependent on their employer, aside from the cases where I mentioned they had taken their passports, et cetera. But that’s, I think, a helpful context just to think about how. the manifestation and the experience for each worker is very dependent on their identity and where they are and what type of work that they’re doing, and can be not only extremely physically challenging, but entirely undignified and disrespected and sort of completely lacking in autonomy, all of which are sort of these, you know, so -called soft things, but are essential to just your own human identity. and I think that That’s a lot of what is so problematic about these types of programs. Even if you are getting paid appropriately, you have to spend nine months at a greenhouse, hundreds of miles away from home and you’re bused into work, or you’re bused into town once a week. It’s like extremely dehumanizing and inhumane. And I think that’s one of the problems that the Canadian program suffers from and what the class action is really trying to highlight.

Gauri Sood Thank you so much for that insight. I think it’s always useful to step out of the US context and sort of understand similarities and differences of what’s going on nearby. So on maybe a little bit more positive note, are there organizing efforts in Canada or transnationally that are meant to address the harms caused by these programs more broadly? And where are the successes or failures of some of these efforts right now.

Izza Drury I mean, I think that we’ve touched a little bit on some of the strategies. I think there’s really amazing work that’s being done by labor organizers and by legal aid representatives and by farm workers themselves, who are sort of coming together and standing in solidarity and advocating for each other where possible. In the article, for those listeners who have read it, the case. the farmworker who… The case of the farm worker who very tragically died while harvesting blueberries in the Pacific Northwest was immediately prompted a strike among many of his colleagues and 60 farm workers immediately struck in support. And so I think part of recognizing some of the strategies are also part of recognizing some of the solution is also recognizing the power and the autonomy and the ability of these workers themselves to advocate and to demand. what they need when there are cases of that. And obviously that is very rare due to the sort of structural harms that we’ve spoken about and the ways in which employers weaponize speaking up to not rehire, et cetera. But I do think that there’s some instances of that on a much higher level and not necessarily an entirely satisfying answer as it’s the beginning of a process and not a victory per se, but there’s been some interesting work. The International organization on Migration recently launched a program to investigate some of the transnational impacts of labor migration in East Asia and Southeast Asia. And it’s a context obviously far away from the H-2A program, but we can see how there’s a transnational impact here. And part of what that initiative is looking at is understanding how corporate actors function in that system. And so much of what we’ve spoken about here is not only how a government, the US government’s regulations might operate, but how the corporate actors without appropriate accountability mechanisms can manipulate or act within that system. And so I think that type of initiative that is a little bit higher level, a little bit regional in nature can be an interesting way to gather more information and more data about how these types of programs work. potentially multiple different programs in a region together, as in the U .S. and Canada, and understand ways in which transnational organizing can become a valid tactic. Obviously, this is a very painful and complicated geopolitical moment, so I’m sorry to say that I don’t have much happier news in terms of victories or campaigns, but I think that type of transnational cross -border advocacy is very important.

Molly Enloe Izza, thank you so much for sharing all of that with us and for joining us here on Flaw School.

Gauri Sood I also want to say thank you for a wonderful conversation. I really enjoyed learning about this in a way that was accessible and understandable for both the legal and non -legal audience. So thank you for that. Thanks so much for having me.

Molly Enloe And I want to thank Gauri for being such a great co -host. It’s always a pleasure being on Flaw with you.

Gauri Sood Oh, thanks, Molly. Of course, it’s always fun co -hosting and I can’t wait to do it again. If you’re interested in reading Isa’s full article or learning more about the flaws in our legal system, please check out the Flaw Magazine at theflaw .org.

Molly Enloe If you enjoyed this episode, make sure to check out the show notes. There will be some awesome links and references there, and make sure to subscribe to our podcast wherever you listen to your podcasts. You can also check out flossblue .org for more content. Thank you all for listening. Look forward to talking at you in the future. Class is dismissed.

Izza Drury

Subscribe to the [F]law

Editor’s Picks