As employees working in the State of Utah, agricultural workers have certain rights protected by federal and state law. The attorneys at Shimoda & Rodriguez Law, PC, are experienced in representing migrant agricultural workers, seasonal agricultural workers, and foreign workers.
Foundations Of Migrant Worker Rights
Migrant workers are protected under the federal Migrant and Seasonal Farmworkers Protection Act (MSPA), enacted by Congress in 1970.
The MSPA established employment standards for wages, housing, transportation, disclosures, and recordkeeping. It also required employers to provide safe working conditions free of health hazards.
The MSPA builds upon the Immigration and Nationality Act, passed in 1952, that allowed for hiring workers from foreign countries for seasonal agricultural work through the H-2A visa program and the H2-B Temporary Labor Certification.
The U.S. Department of Labor certified over 500 migrant workers to work in Utah in 2021 under the Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers, also known as H-2A Visas, according to Department of Labor data.
What is the H-2A Visa Program?
The H-2A temporary agricultural program helps short-staffed employers to hire foreign workers, bringing them to the U.S. to provide temporary or seasonal agricultural work.
Employers who file H-2A applications must:
- Pay all covered workers at least the highest of the applicable wage rates at the time work is performed, including the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage.
- Provide each worker a copy of the work contract in a language understood by the worker that describes the terms and conditions of employment.
- Guarantee to offer each worker employment for a total number of hours equal to at least 75% of the workdays in the contract period.
- Provide housing at no cost.
- Transportation between the worker’s living quarters and the employer’s worksite.
Foreign agricultural workers admitted into the U.S. on H-2A visas are exempt from federal income tax withholding, Social Security, and Medicare taxes (FICA) on wages paid to them for services performed with an H-2A visa.
What Happens If Employers Violate H-2A Visa Protections?
Violations of the H-2A visa program are more widespread than migrant workers realize.
Farmworker Justice, a nonprofit organization that seeks to empower migrant and seasonal farmworkers, followed investigations into violations of the H-2A visa program. The nonprofit found instances where farms threatened workers with deportation if they didn’t accept wages below the legal requirements; provided run-down housing with no heat, no hot water, no working toilets, and pests; and restricted access to adequate drinking water for farm workers in the field.
The Wage and Hour Division of the Department of Labor enforces protections afforded to workers of a temporary or seasonal nature. Investigators may enter and inspect premises, including vehicles and housing, review and transcribe payroll records, and interview workers to determine MSPA compliance.
Administrative actions under MSPA include penalties for each violation that may result in civil or criminal prosecution. In criminal cases, courts may assess fines and prison terms of up to three years.
Individuals whose rights under MSPA were violated can file suit directly in federal court for damages. Shimoda & Rodriguez Law, PC can help you craft your case and file the lawsuit on your behalf.
If your employer has violated your rights the legal experts at Shimoda & Rodriguez Law, PC will guide you through all your available options.
What About Immigrants and Undocumented Workers?
According to the American Immigration Council, nine percent of Utah residents are immigrants, and three percent of the state population are undocumented.
Naturalized immigrants and undocumented workers are guaranteed the same benefits and rights as domestic workers under the Fair Labor Standards Act (FLSA), which established the guidelines for minimum wage and overtime pay eligibility.
The FLSA doesn’t provide umbrella protection from federal government agencies such as Immigration and Customs Enforcement.
Utah enacted a Guest Worker Program in 2011 that would have helped undocumented workers obtain citizenship and immigration services. However, the Utah Department of Public Safety never received the federal waivers, exemptions, or authorizations necessary to realize the legislation.
Shimoda & Rodriguez Law, PC Can Help Migrant Workers
If your employer has violated your rights under the H-2A visa program or the Fair Labor Standards Act, you may have an employment law case in Utah.
We’ll help you navigate federal government websites and show you the rights granted to you by the United States Government that your employer may have violated.
How We Approach Migrant Worker Cases
- Initial Consultation: Our attorneys will speak with you and gather the specifics about your case.
- Review & Plan: Once we have the specifics, our team can build a legal strategy to achieve your best outcome.
- Representation & Resolution: While we will explore whether an amicable resolution with your employer is possible, there are times when the matter must go to court. In this instance, our firm will aggressively represent you and pursue an outcome in your best interest.