Help WantedHelp Wanted

A broken system finds dairy farmers and their employees at the forefront of the immigration debate and desperately searching for solutions
September 14, 2010
Dairy Farmers of America

An immigration lawyer answers DFA member questions.

Throughout the country, on dairy farms large and small, farm laborers are dedicating their days to caring for America’s dairy cows. Many of these workers are from outside the United States, a large percentage entering America from neighboring Mexico. Some are here legally; others illegally. For dairy producers who hire foreign-born workers, increasing raids and audits by immigration officials have left them in a state of fear, despite their best efforts to comply with employment laws.

The debate on immigration has raged for years. It’s an issue that produces strong emotions on both sides and deeply divides this country. In the dairy industry, it’s a reality that must be dealt with. Dairy Farmers of America, Inc. has consistently worked with lawmakers to develop and support immigration legislation that is fair to dairy producers — those who utilize foreign-born workers and those who don’t. As this year’s congressional session winds down, action on the issue looks unlikely. The debate rages on, and farm owners remain victims of a broken system. These are some of their stories.

Dairy producers who employ Hispanic laborers will tell you that they live in a constant state of fear. The possibility of immigration officials charging their farms, guns drawn, handcuffing employees isn’t necessarily what scares them. Rather, it’s a piece of paper that is more likely to send chills down producers’ spines.

“They handed me a subpoena that demanded my state unemployment tax records, names and Social Security numbers for all of my current employees and all the employees I’ve had for the past three years,” says Bonnie*, a DFA member in the western region of the United States. “They also wanted all of the I-9 documents that go with them — originals, not copies. I was told those were their forms, not mine.”

For a producer with foreign-born workers — even one like Bonnie, who keeps detailed records — a subpoena can mean losing half of your workforce, or defending yourself against a felony charge of harboring illegal aliens.

Culture of fear
Dairy farmers say hiring foreign-born workers can be a Catch-22. With American workers rejecting agricultural jobs, dairy producers hire from the labor pool available, which typically consists of Hispanic workers. Farmers work to comply with labor laws, requiring documentation from workers that proves they are legally permitted to work in this country. But, even when proper documentation appears to be presented at the time of employees’ hiring, it is extremely difficult for employers to verify that the documentation is authentic.

“Right now, the Obama administration has key agencies like Immigration and Customs Enforcement (ICE) and the Labor Department’s Wage and Hour Division investigating employers at a record pace,” says Craig Regelbrugge, co-chair of the Agriculture Coalition for Immigration Reform (ACIR), which advocates for immigration policy reform and of which DFA is an active member. “The results can be harrowing, even for good employers who are crossing their t’s and dotting their i’s.”

The fear of unknowingly being out of compliance with the law is so persistent, that all of the dairy producers mentioned in this story requested their names be changed to avoid unwanted attention from the Immigration and Customs Enforcement Agency.

“The laws and regulations have built this culture of fear,” says Dan*, a DFA producer in the Midwest. “We’re all afraid that we’re not in compliance, despite the fact that we’ve taken all of the proper steps and done everything we can to stay legal.”

Dan is currently facing a lawsuit from federal agencies that are accusing him of harboring illegal ailiens.

“The problem is that verifying a worker’s documentation is difficult,” he says. “It’s frustrating because the system is working against us.”

A maze of paperwork
When hiring workers, employers must fill out an I-9 form for each hire. The form includes spaces for basic information like name, address and date of birth. Employees must fill out this information and include their employment status: U.S. citizen, legal permanent resident or an alien authorized to work until a given date.

The form also includes a list of 10 acceptable documents employees may provide employers to verify employees’ identities and employment authorization. As long as employees produce documentation from the list that “a reasonable person would not suspect as fraud,” employers have complied with the law. However, if that documentation is later found to be fraudulent, employers are held accountable.

When Bonnie was audited, enforcement officials found that more than 70 percent of her employees had documents that were suspect. Bonnie gave those employees two weeks to produce valid documentation.

“Fifty percent of those I asked for additional documentation from didn’t show up for work the next day,” she says.

There is a federal program available to employers to verify workers’ employment eligibility called Electronic Verification, or E-verify for short. E-verify is a free, online program that allows employers to instantly verify that a worker is legally permitted to work in the United States. However, to use the program, employers must use it for all of their employees and, according to a 2010 audit by Westat, the program fails to identify undocumented workers 54 percent of the time.

“E-verify is flawed,” Bonnie says. “It doesn’t work. There is no reliable way to verify that documents we receive are authentic.”

After ICE officials audited her employment records, Bonnie lost more than a third of her total workforce overnight.

“What do you do when you have animals that need to be milked and fed and taken care of and your workers don’t show up?” she asks. “It becomes an animal welfare issue.”

The day after the ICE audit on her farm, more than half of the 32 calves born on her dairy that day died because there weren’t enough experienced workers to take care of them. Having a reliable workforce is crucial on a dairy where every cow has to be fed, milked and cared for every single day. “I switched to hiring immigrant workers a number of years ago because I couldn’t get anyone in the area to do the work,” says Lori*, a DFA member with a small operation in the Northeast. “Most of the non-immigrant workers wouldn’t stay for even a month, or they just wouldn’t show up for work. That means someone is doing double the work or your cows are suffering because you can’t find enough people to help take care of them.”

Hard work, good wage
Anti-immigration groups often claim that the agricultural industry uses foreign-born labor because of poor working conditions and low pay.

A 2009 study by National Milk Producers Federation (NMPF) found that an average dairy worker’s salary is $31,521 per year.

“They all get a good wage,” Bonnie says. “None of my guys are on welfare or at the bars creating havoc. They are just working hard at a job that no one else wants to do.”

Bonnie says her longtime, highly skilled employees make much more than the national average, and she provides English classes and on-the-job training for her workers — training that sometimes takes years to complete.

“To get workers who can work in hospital pens or the maternity pens and who do things the right way and the way that they should be done, it can take 10 or 15 years to train the kind of guys we need,” she says. “We make a huge investment in our employees and to have them taken away overnight really hurts our business.”

Policies that work against producers
The dairy industry is in desperate need of a stable, reliable workforce, says Brandon Mallory, president of Agri-Placement Services, a company that places workers on farms and provides ongoing bilingual support and assistance with labor law compliance.

“There is no visa program for permanent agricultural workers,” he says. “There are several visa programs for seasonal operations, but those don’t work for dairy because dairies are year-round.”

Immigration reform has been on Congress’ to-do list for years, but bipartisan politics and the gravity of reform needed has ultimately stalled any legislation proposed. However, the issue is gaining attention from the public and legislators, and many are hopeful that reform will happen this year or next.

One bill that has gained support, including DFA’s, throughout the agricultural sector is the Agricultural Job Opportunities, Benefits and Security Act (AgJOBS). AgJOBS would provide a program that would enable many undocumented farm workers to earn temporary immigration status with the possibility of becoming permanent residents by continuing to work in agriculture and meeting additional requirements. The legislation would also revise the existing H-2A visa program, which allows seasonal agricultural workers to gain admittance to the United States.

“One of the most important components of AgJOBS is that it allows the current workforce to remain in the country through a series of processes,” Mallory says. “That’s important because as an industry, we can’t afford to lose the workforce we already have. Farms everywhere are struggling to find labor.”

According to the NMPF study, 41 percent of the dairy industry’s workforce is foreign-born. If just half of those workers were lost due to revised immigration policies, it would result in an economic loss of $11 billion.

“In the absence of smart reform, more and more producers will find themselves on the brink,” Regelbrugge says. “More and more children in the next generation will leave the farm, seeing no future there.”

Immigration reform is at the top of DFA’s legislative priorities, says Jackie Klippenstein, DFA vice president of industry and legislative affairs.

“The current system sets dairy producers up for failure by not providing their workers with a viable visa program,” she says. “Within the current system, a producer can be in compliance with the law and still lose a substantial part of their workforce and/or face hefty penalties. Long term, this will put the U.S. at risk of needing to import dairy products from other countries, which may not have a robust food safety regime in place.”

DFA members and staff have been active in speaking with their legislators about immigration reform, traveling to Washington, D.C., and hosting lawmakers on farms. In addition, DFA offers resources to members who have questions about employment regulations.

Not soon enough
Although her operation is back at full staff today, Bonnie says she knows federal agencies continue to monitor her.

“We’re just trying to run our business,” she says. “I’ve always had a paper trail for everything, and we’re at full staff now, but the cows have paid the price and that’s wrong.”

For now, Bonnie, Lori and Dan say they are just doing their best to stay in compliance with the law, but immigration reform can’t come soon enough.

“We just need a program that works for our industry,” Dan says. “We can work with a system, just give us a program that works and we’ll figure it out.”

*Names have been changed.