Kobach objects to proposed federal rule allowing H-2A farm workers to unionize, fight exploitation

by Tim Carpenter, Kansas Reflector
November 16, 2023

TOPEKA — Kansas Attorney General Kris Kobach lined up a coalition of 22 Republican attorneys general to denounce a proposed U.S. Department of Labor rule allowing agriculture workers with H-2A temporary work visas to join labor unions for protection against wage theft, workplace abuse and human trafficking.

Kobach, who organized a public-comment campaign against the national labor rule, said it would be illegal for the administration of President Joe Biden to extend union protection to migrant farm laborers when the federal government had declined to extend collective bargaining rights to U.S. farmers since President Franklin Roosevelt was in the White House.

“This rule is not just a violation of the law. It is bad policy,” Kobach said. “Once again, the Biden administration has placed the interests of foreign nationals over the interests of United States citizens.”

“Giving unionization protections to a class of employees naturally drives up the cost of doing business for their employers,” the Kansas attorney general said. “Most unions will freely admit this. Indeed, that is the very point of labor organization and collective bargaining. If the result were not increased benefits for employees borne by increased costs on the employer, there would be no point in unionization.”

While the U.S. government under federal statute has forbidden agriculture workers from organizing in unions since the mid-1930s, individual states possessed authority to perimit unionization of farm workers. Kansas, despite its status as a right-to-work state, was among at least 14 states to permit agriculture laborers to bargain collectively.

‘Fear of retaliation’

In September, the U.S. Department of Labor announced the proposed rule. Federal officials said the objective was to protect hundreds of thousands of foreign nationals, mostly from Mexico, on H-2A visas against abuse and retaliation within the agriculture industry. The policy would formalize worker self-advocacy, make international labor recruitment more transparent and enhance the federal agency’s enforcement power.

The proposal would make it easier for labor union leaders to interact with H-2A agriculture workers. These farm laborers would be allowed to have visitors from union organizations in employer-provided housing. Employers would be required to provide a list of H-2A workers to requesting labor organizations. Employers would be forbidden to hold coercive “captive-audience” meetings with visa-enabled workers in the country.

Teresa Romero, president of the United Farm Workers, said during testimony to the U.S. House in 2022 that it was important for the federal government to support improvement of conditions in H-2A workplaces by granting employees the ability to communicate about their concerns, demand better conditions and assert their rights through collective bargaining.

“These protections are key to protecting against labor trafficking and to ensuring that workers have the tools to assert their protections, including the ability to raise their voices without fear of retaliation or blacklisting,” Romero said. “Without these protections, labor requirements will continue to exist on paper, but be meaningless for many workers.”

‘Add insult to injury’

Kobach’s letter to the Department of Labor was signed Tuesday by attorneys general in Missouri, Iowa, Nebraska and Oklahoma as well as 17 other GOP state attorneys general.

Kobach said the Biden administration’s strategy was “clearly designed to obtain political ends” by advancing a pro-union policy based on a flawed interpretation of 1986 federal immigration law. He said the Department of Labor “perversely claims to be fulfilling” its responsibilities by opening the door to unionization among holders of H-2A visas, he said.

The Kansas attorney general, who campaigned for the job last year on a platform anchored by a promise to file lawsuits against the Biden administration, complained the Democratic president didn’t incorporate into the proposed rule a mechanism for compensating U.S. agriculture employers for time H-2A workers engaged in labor organizing and advocacy.

“This is not only absurd, but wrong,” Kobach’s said. “The combined effects of high inflation and interest rates have left countless Americans, including farm workers, behind. Prioritizing the interests of foreign agricultural workers over those of Americans simply adds insult to injury. The department must change course to avoid this situation.”

Protections inadequate

Daniel Costa, director of immigration law and policy research at the nonpartisan Economic Policy Institute in Washington, D.C., said the United States had increased reliance on seasonal farm workers with H-2A visas to carry the load in plant and animal agriculture.

However, he said, the federal government hadn’t established protections to shield workers in the farm program from egregious exploitation.

“Migrant workers who are recruited to the United States to fill job openings should also have certain rights,” he said. “They should have the right to leave an abusive or law-breaking employer without fearing retaliation and deportation.”

Costa said abuse of temporary migrant workers in U.S. work visa programs went beyond the agriculture sector.

“College-educated workers in computer occupations, as well as teachers and nurses, have been victimized and put in ‘financial bondage’ by shady recruiters and staffing firms that steal wages, forbid workers from switching jobs or taking jobs the recruiters don’t financially benefit from,” he said.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.