Order Code RL33372
Migrant and Seasonal Agricultural Workers:
Updated August 29, 2007
William G. Whittaker
Specialist in Labor Economics
Domestic Social Policy Division
Migrant and Seasonal Agricultural Workers:
Workers in agriculture, generally, have experienced a different pattern of labormanagement relations and labor standards from those in the industrial workforce. In
part, such disparity was related to the nature of the work and the characteristics of the
workers. Some agricultural workers have tended to be migratory or seasonal. They
have tended to be employed, more or less casually, for short periods by any single
employer who, perhaps not surprisingly, did not want to be burdened by a regular
employer-employee relationship. Some agricultural workers are skilled; the majority
are probably marginally skilled or unskilled, though they perform necessary services.
Two pieces of legislation, sequentially, have dealt in a significant manner with
migrant or seasonal agricultural labor. In 1964, Congress passed the Farm Labor
Contractor Registration Act (FLCRA). For a decade, little attention was paid to the
statute, but then, in 1974, it was amended, and suddenly, a storm of protest was
heard. It was argued that the wrong people were being forced to register. Through
the next nine years, various interests sought modification of the act to conform to
their perceptions of the original intent of the Congress. In 1983, Congress repealed
the FLCRA and replaced it with the Migrant and Seasonal Agricultural Workers’
Protection Act (MSPA). With a very few exceptions, MSPA has operated without
controversy. But, at the same time, some may ask, has the new enactment been
The two statutes — FLCRA and MSPA — are intimately connected and have
triggered similar reactions with respect to immigration policy, to the inability of
agricultural workers to organize and to bargain collectively, and to more general
labor standards. Some have suggested that practices under FLCRA and of MSPA
have been unduly burdensome. Has the concept of farm labor contractor been
defined with sufficient care? Have agricultural interests made effective use of their
employees, providing them with training and with consistency of employment?
Might better utilization of employees prove more productive and more profitable?
And, might these changes, in turn, prove more attractive to domestic American
This report is a summary and a survey, spelling out the considerations that
Congress found were a part of the realities of agricultural employment in 20th (and
21st) Century America. It begins in the 1960s with the advent of FLCRA, and
proceeds through the enactment of MSPA and to the end of the century. But, it is
also a summary of developments in the history of the two statutes, written from the
perspective of a labor economist. It may, from time to time, be revised as new
Thus far, in the 110th Congress, no new legislation has been considered that
would amend MSPA.
PART I: The Farm Labor Contractor Registration Act, Origins,
and Congressional Enactment (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Various Roles of the Farm Labor Contractor . . . . . . . . . . . . . . . . . . . . . 2
Issues in the Early Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State Versus Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Authority for the Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defining Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Braceros Versus Domestic Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Comparing Braceros with Domestic Workers . . . . . . . . . . . . . . . . . . . 10
Sorting Out the Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Congressional Action on Contractor Registration . . . . . . . . . . . . . . . . . . . . 12
The Farm Labor Contractor Registration Act of 1964 . . . . . . . . . . . . . . . . . 13
PART II: The First Years of the Farm Labor Contractor Registration Act
(1964-1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Inaugural Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A Certain Dissatisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Problems Associated with FLCRA . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Amending the Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Changing Character of the Farm Labor Contractor . . . . . . . . . . . . . . . 23
Defining a Labor Dispute or Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
The Day Haul and the Shape-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Interstate Versus Intrastate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Establishing Responsibility: Growers Versus
Farm Labor Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Immigration and Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A New Statute through Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Bipartisanship Emerges in the House . . . . . . . . . . . . . . . . . . . . . . . . . 30
The Senate Concurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Compromise Is Reached . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
The 1974 FLCRA Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
PART III: Implementing a Revised Statute (1974-1983) . . . . . . . . . . . . . . . . . . 35
Pressures Begin to Mount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
General Problems of Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
More Specialized Concerns with FLCRA . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Internal Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Employment of Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Dealing with the Bureaucracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Reaction from the Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
The Local Reaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
New Regulations Released . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Coverage and Controversy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Custom Combining, Hay Harvesting, and Sheep Shearing . . . . . . . . . 45
Poultry Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
To Detassel and Rogue Hybrid Seed Corn . . . . . . . . . . . . . . . . . . . . . 47
The Lessening Coverage of FLCRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Hearings in the House: 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Concerns Grow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Relations with the Department of Labor . . . . . . . . . . . . . . . . . . . . . . . 52
The Boren Amendment and the Panetta Bill (1980) . . . . . . . . . . . . . . 53
The Boren Bill and the Panetta Bill (1981) . . . . . . . . . . . . . . . . . . . . . 55
The Miller Hearings and Their Aftermath (1982) . . . . . . . . . . . . . . . . . . . . 57
The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Consideration and Floor Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Part IV: A New Statute Emerges (1983 ff.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
The Structure and Provisions of the New Law . . . . . . . . . . . . . . . . . . . . . . 59
Adams Fruit Co., Inc. v. Barrett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
A Ruling from the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Hearings on Workmen’s Compensation . . . . . . . . . . . . . . . . . . . . . . . 64
The Goodling Bill (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Part V: Agricultural Workers in the New Century . . . . . . . . . . . . . . . . . . . . . . . 67
Migrant and Seasonal Agricultural Workers:
During the late 1950s, a general congressional interest had developed in the
condition of migratory or seasonal farm workers in the United States. Several
exploratory hearings had been held, but no new legislation had been adopted. Then,
on a Friday evening, the day after Thanksgiving (1960), a television program aired:
Harvest of Shame, with Edward R. Murrow.
Harvest of Shame was a report on the plight of the migratory farm workers ...
who as virtual peons kept the nation’s larders stocked. The public reaction to it
was one of surprised horror at the conditions portrayed. Farm organizations were
horrified for other reasons, charging ‘highly colored propaganda’ and ‘deceit.’
Farmers’ spokesmen demanded ‘equal time’....1
The Murrow broadcast emphasized the risks and hazards associated with crew
leaders and agricultural employment at large. Whatever the flaws of the film, it
provided a context for various pieces of migrant and seasonal farmworker legislation
that had been (and would continue to be) before the Congress.
Through the next several years, Congress would consider a number of pieces of
remedial legislation focusing upon the farm environment. Two bills that became law
are of special importance: the Farm Labor Contractor Registration Act (FLCRA:
1964-1983) and a successor statute, the Migrant and Seasonal Agricultural Workers’
Protection Act (MSPA: 1983 ff.). The two statutes, sequentially, provide the basis
for regulation of migrant agricultural and seasonal agricultural workers. A focal point
of each of the statutes, however, has been the farm labor contractor.
Through nearly 50 years, intermittently, the Congress has debated the two
statutes and their implications — for labor supply, for immigration, and for equity for
the several parties involved. The issues have changed little, though their focus may
have been altered. Initially (up to 1974), concern was voiced with respect to farm
labor contractors and their alleged excesses. Then, after the 1974 amendments to
FLCRA, concern moved away from contractors and toward those who used migrant
and seasonal workers: essentially, the growers and their agents. In 1983, FLCRA
was repealed and replaced with the Migrant and Seasonal Agricultural Workers
Protection Act. The latter (MSPA), with few exceptions (notably, the case of Adams
Fruit; see below), has remained as written. There have been numerous hearings on
the act and, likely, more will follow. This report summarizes debate over the acts
and, in that context, the evolution of agricultural labor.
Alexander Kendrick, Prime Time: The Life of Edward R. Murrow (Boston: Little, Brown
and Company, 1969), p. 453.
PART I: The Farm Labor Contractor Registration
Act, Origins, and Congressional Enactment (1964)
The farm labor contractor (or crew leader) “is the bridge between the farm
operator and the migrant laborer.” Farm operators would go south each year to “meet
the crew leader” and arrange for migratory crews. A large majority of migrants
belong to crews. In 1960, it was reported, the largest crew numbered 185 workers,
the smallest 13 — with the usual size between 45 and 74 members. The crews grew
out of “the need of inarticulate people to have someone to speak for them” and the
farmer’s problem “of recruiting and handling labor.”2
In 1959, Senator Harrison Williams (D-NJ) introduced legislation seeking,
through federal registration, “to eliminate the relatively few migrant labor contractors
who are dishonest and immoral, and who exploit migrant workers and growers.” A
slightly different bill was introduced by Senators Jacob Javits (R-NY) and Kenneth
Keating (R-NY). In the House, Representative James Roosevelt (D-CA) was an early
sponsor of such legislation.3 None of these early bills were approved. It would take
hearings and subsequent refinement through three Congresses before their adoption.
The Various Roles of the Farm Labor Contractor
In theory, the crew leader is an “independent businessman” with varied tasks.
Some crew leaders do little more than recruit for farm operators — but for a farmer
several hundred (or several thousand) miles away from the areas of labor supply, that
task is monumental. Others become more deeply involved in the management of the
crew. The report to the Senate Subcommittee on Migratory Labor (1960) observed
Some ... provide transportation for the migrant. Others oversee the work of the
crew upon its arrival; manage the camps where the migrants are housed; provide
the commissary and food facilities; pay the crew members; haul the produce from
the fields to the packing sheds....
The profit for the farm labor contractor “lies in the differential between what they are
paid by the farmer and [what they] pay to the worker.” Some crew leaders work on
a commission basis, taking a few cents from each item produced by crew members.4
The list of alleged abuses associated with the farm labor contractor appears to
have been as long and varied as those engaged in the field. As the 1961 hearings
commenced, William Batt, Pennsylvania’s Secretary of Labor and Industry, noted:
U.S. Congress, Senate, Subcommittee on Migratory Labor of the Committee on Labor and
Public Welfare. 86th Cong., 2nd Sess. (1960). Committee Print, The Migrant Farm Worker
in America, p. 34. Report by Daniel H. Pollitt, et al. Cited hereafter as Pollitt, The Migrant
Farm Worker in America.
Pollitt, The Migrant Farm Worker in America, pp. 36-38.
Ibid., pp. 34-36.
“The good ones [crew leaders] say to me, ‘I preach to the men to save their money.’”
Of the less desirable crew leaders, Batt noted the then standard complaints:
“Changing wage rates without explanation.”
“Exploitation of child labor.”
“Illegal sale of alcoholic beverages.”
“Charging the workers a rental fee on housing provided free by the grower.”
“Importation of prostitutes, with sharing of the ‘take.’”
“Food profiteering in crew-leader-operated commissaries.”
“Hunting deer out of season.”
“Shooting and beating up other crew leaders.”
“Rigged crew-leader-operated gambling games.”
“Paying crew members in ‘scrip’ in lieu of cash.”
“Charging exorbitant transportation fees.”
Batt continued. “In the case of one crew leader who kept accurate wage records, the
services of a prostitute were a payroll deductible item.”5
Matt Triggs, speaking for the American Farm Bureau Federation and defending
the contractors, suggested that stories of abuse were “told and retold” with a
“misleading implication that there is more of this than there really is.”6 Another
witness, with legislation in mind, argued that contractors “are educationally
unequipped to perform the laborious clerical function this bill would impose.”7 A
third stated that with their “limited education,” the contractors would be “unable to
fill out the necessary forms” that the act will require.8 Yet another declared “They
are not schooled.... Much recordkeeping, much bookkeeping is anathema to them.
They are not trained for it.”9 Triggs asserted that “most leaders have previously been
migratory workers. They are semi-literate.”10 And, Triggs affirmed, “You have got
to realize that an awful lot of these crew leaders are very simple people....”11
Nonetheless, contractors may undertake relatively sophisticated responsibilities.
Secretary of Labor Willard Wirtz pointed out that, in Oregon, it was “the general
U.S. Congress, Senate Committee on Labor and Public Welfare, Subcommittee on
Migratory Labor. Migratory Labor. Hearings, 87th Cong., 1st Sess., April 12-13, 1961, pp.
45-46. (Hereafter cited as Hearings, Senate, 1961.) See also U.S. Congress, Senate,
Subcommittee on Migratory Labor, Committee on Labor and Public Welfare. Migratory
Labor Bills. 88th Cong., 1st Sess., April 10, 23, and 24, 1963, pp. 38-40. (Hereafter cited as
Hearings, Senate, 1963.)
Hearings, Senate, 1961, p. 53.
James B. Moore, National Apple Institute, Hearings, Senate, 1961, p. l83.
Charles M. Creuziger, Vegetable Growers Association of America, Hearings, Senate, 1961,
Carroll Miller, West Virginia State Horticultural Society, Hearings, Senate, 1961, p. 125.
Hearings, Senate, 1961, p. 54. See U.S. Congress. House, Committee on Education and
Labor, Subcommittee on Labor. Migratory Labor. Hearings, 87 Cong., 1st Sess., May 9-10,
1961, and May 19-20, 1961, p. 238 (Hereafter cited as Hearings, House, 1961.)
Hearings, House, 1963, p. 15.
practice” of using the crew leader “as a paymaster.”12 The “crew leader acts as an
intermediary between the grower and the workers,” and in nearly “two thirds (63
percent) of the areas surveyed” nationally, the “workers were paid by the crew
leaders....”13 Similarly, “the crew leader is responsible in certain circumstances for
making the necessary deductions and keeping payroll records” with respect to social
security participation.14 Sarah Newman, then of the National Consumers League,
observed, “Because crew leaders are under no regulated responsibility to anyone,
their many abuses have been able to flourish.”15
Issues in the Early Debate
During three Congresses (from 1959 to 1964), numerous bills (not always laborrelated) were introduced to ameliorate the conditions of agricultural workers. As
these bills evolved, it was difficult to keep their implications separate. The following
section analyses, in a general way, deal with issues and concepts common to many
of these proposals.
Hearings, Senate, 1963, pp. 39-40. It would appear that the most frequent cause of
concern, where farm labor contractors are involved, were problems associated in some
manner with transportation. In the U.S. Congress, Senate, Committee on Labor and Public
Welfare, 87th Cong., 1st Sess., Senate Report No. 695 to accompany S. 1162, August 9, 1961,
p. 5, it is noted that “These abuses include overcharging workers for transportation
advances, collecting for transportation expenses from both employers and workers,
accepting transportation advances from employers and failing to report to work or reporting
with a smaller crew than contracted for, abandoning a crew without means of transportation,
and failure to return workers to their homes.” (Cited hereafter as Senate Report No. 695,
Hearings, Senate, 1963, p. 39. The reference was to a brochure, “Summary of Farm Labor
Crew Leader Practices,” November 1962, prepared by the Farm Labor Service, Bureau of
Employment Security, Department of Labor.
Senate Report No. 695, 1961, p. 5. During Hearings, House, 1963, p. 97, there was a
dialogue between Representative James Roosevelt and Edith E. Lowry, testifying on behalf
of the National Advisory Committee on Farm Labor.
“Mr. Roosevelt: ... We would also, for social security purposes, have a better way of
seeing whether the proper deductions were being made and forwarded to the Federal
Government rather than having, as we now suspect, but have very little way of proving,
many of them pay social security to the crew leader and yet get no credit for it by the social
“Would you consider this was too onerous a task for us to impose upon a crew leader?”
“Miss Lowry: I don’t think so because it seems to me it is essential for anybody who
carries the responsibility of handling the affairs for so many people that find difficulty in
fitting into our society to be required to handle these things in an orderly way.”
“I do know there is a real problem in the social security matter.”
U.S. Congress, House, Committee on Labor, House Committee on Education and Labor,
88th Cong., 1st Sess., Hearing, Registration of Farm Labor Contractors, April 3, 5, and 10,
1963, p. 70. (Cited hereafter as Hearings, House, 1963.) Newman, p. 69, notes: “Because
of their dependency on the crew leader, migrant workers are particularly vulnerable to
exploitation and abuse by these contractors. Migrants,” she explained, “are usually isolated
from the community, sometimes never even meeting the grower whose crop they pick. They
are dependent on the crew leader for the next job, and for their daily living arrangements.”
State Versus Federal. “We do not believe this bill would serve any useful
purpose since most farm labor contractors are already registered with one or more
State employment services,” stated Charles Creuziger, spokesperson for the
Vegetable Growers Association of America. “We believe, as a matter of principle,
that regulation of the contractors can best be handled by the States.”16
Industry and non-industry forces divided on the issue of federalism. J. Banks
Young of the National Cotton Council urged that the issue was strictly local and that
federal intervention “would adversely restrict the availability and mobility of such
workers and unnecessarily increase farm costs.”17 Noting the alleged abuses under
the current system, Richard O’Connell of the National Council of Farmer
Cooperatives stressed the local character of the problem. Most states, he suggested,
have “laws prohibiting gambling, prostitution, unlawful narcotics, and liquor sales.”
If so, “the crew leaders should be indicted under the appropriate laws” and, having
“paid their debt,” should not be harassed.18 Triggs also thought local government
could handle the issue. “Even if the 9 or 10 farm labor bills now before the Congress
were to be enacted, we believe they would represent an ineffectual approach to the
problem, and in some cases would be decidedly harmful to the interests of workers
Observing that the states already had regulations dealing with labor camps,
Triggs stated that “... only a handful of these laws are really adequate.” Crew leaders
“can evade their regulations by ... going to other States with their crews that do not
have licensing requirements.” If the federal government were to act, it should focus
on “the licensing of crew leaders or contractors of migratory labor.”20
The problem “requires the leadership of the Federal Government,” Secretary
Wirtz advised, because of the movement of contractors across state lines. A person
“... involved in malpractice in this area is simply likely not to be there when
somebody charges him.”21 Others concurred. “A fellow who is fined or barred in one
State will simply duck into another State and there perhaps commit the same
practices,” suggested Arnold Mayer of the Amalgamated Meat Cutters and Butcher
Workmen of North America. “The migrant labor stream is an interstate stream and
dealing with it needs interstate legislation.”22
Authority for the Secretary. Industry spokespersons questioned the wisdom
of granting new authority to the Secretary of Labor to manage agricultural labor
Hearings, Senate, 1963, p. 150. References to “this bill” or to “the bill” are generic. In
some cases, it is not clear to which bill a speaker is referring or to an abstract bill. Further,
reference is to a series of hearings with different bills.
Hearings, House, 1963, pp. 141-142.
Hearings, House, 1963, p. 22.
Hearings, House, 1963, p. 8.
Hearings, Senate, 1961, pp. 23-24.
Hearings, House, 1961, p. 116.
Hearings, House, 1963, p. 139.
supply. “Many of the terms used ... are not clearly defined,” stated Young, of the
Cotton Council. As it stands, the “... power to issue regulations under the authority
of the bill is extremely broad.”23
The authority granted to the Secretary, remarked James Moore of the National
Apple Institute, would “inevitably result in control by the Secretary ... of the
agricultural migratory labor market.”24 The requirement “as to their financial
responsibility would impose burdens which few individuals recruiting labor could
meet.”25 The proposed legislation would establish the Secretary “as judge, jury, and
prosecutor,” stated Delmer Robinson of the Frederick County (Virginia) Fruitgrowers
Association. “We do not feel that a man’s livelihood [the contractor’s] should
depend on the benevolence of the Secretary of Labor.”26 The Secretary, in accord
with his own rules, can put out of business any contractor who has “‘failed without
justification’” to comply with the regulations — but the proposal “is completely
silent as to who would decide whether or not there was ‘justification.’ It is presumed
the Secretary ... could arbitrarily decide this point.”27
Defining Terms. Through the hearings, concepts to be used in the act were
gradually defined. Still, numerous concerns were voiced by industry with respect to
the several bills that came before the committees.
Defining a Contractor. The Farm Bureau favored a narrow definition of
contractor with registration “limited to crew leaders proper, and not extended to all
persons who may recruit or transport workers.” But how might one distinguish
between a labor contractor (to be registered) and persons who may recruit or
The National Cotton Council argued that the concept of contractor, thus far
defined, “would require registration of fraternal, religious, social and other
organizations which frequently provide temporary agricultural employment for their
members” and processors “who provide workers to farmers.”29 Others argued that
the term might include “charitable and religious organizations” and “4-H advisers.”30
The proposal, it was suggested, “seems to make a crew leader out of everyone who
contacts more than nine people”31 and could include groups such as “sugar
Hearings, Senate, 1963, pp. 302-303.
Hearings, Senate, 1961, pp. 182-183.
Statement from the National Cotton Council, Hearings, House, 1961, p. 216.
Hearings, Senate, 1961, p. 63.
Hearings, House, 1963, p. 141.
Hearings, House, 1963, p. 10.
Hearings, House, 1961, p. 216.
Hearings, House, 1961, p. 206.
Hearings, Senate, 1961, p. 129.
companies, canneries, and cotton gins” that provide labor only as “incidental to the
main services they offer farmers.” These, some felt, should be excluded.32
Even true crew leaders often work through “responsible employees” who should
not have to register. It was argued “... that employees of any registered entity should
not be required to register” but, rather, have “a single certificate of registration for the
overall recruitment activity....”33 The definition of contractor, it was urged, “...
should be changed to cover the individual ... who gathers a crew of workers in one
State and transports them to another State and stays with them in a supervisory
capacity ... and is the actual crew leader.”34 Again: “We would strongly recommend
that you eliminate at least the resident concern, the canner who recruits workers for
farmers in the territory, the sugar companies, the cotton gins, ... labor associations,
and others that are responsible financially....”35
Duration of Registration? “Registration should be permanent and continue
in effect until revoked for cause,” the Farm Bureau spokesman held. “We see no
valid reason for the annual licensing of crew leaders.”36
The Department of Labor (DOL), however, did recognize a need for annual
licensing. “The common phrase, ‘fly by night’ applies, I suppose, more aptly to this
economic situation than to almost any other which I can think of,” observed Secretary
Wirtz.37 “All the evidence we have indicates that there is considerable turnover
among the crew leader personnel,” observed Robert Goodwin of DOL’s Bureau of
Employment Security, making it “necessary, really, to have an annual certification....”
Goodwin took note of auto and other insurance.
This would be issued on an annual basis and would require a determination as
to whether the insurance had been purchased and was adequate, and only after
that determination was made could the certification be completed. This would
require the annual certification.38
The International Apple Association raised the issue of fees for service. While
the current Secretary may not anticipate a significant fee, a future Secretary “might
wish to put the contractors out of business” and could set an unreasonable sum.39
Hearings, House, 1963, p. l43.
Hearings, House, 1961, p. 206.
Hearings, House, 1961, p. 176. (Italics added.)
Hearings, Senate, 1963, p. 161. On this issue, see Hearings, House, 1963, pp. 10-13,
where there is a dialogue between Representative Roosevelt and Triggs of the Farm Bureau.
Hearings, House, 1963, p. 10.
Hearings, House, 1963, p. 120.
Hearings, Senate, 1963, p. 144.
Hearings, Senate, 1963, p. 227.
Senator Williams tended to agree. “My feeling is if there were a fee,” he said, “it
should be limited to taking care of the administrative costs....”40
Rulemaking Authority of the Secretary. “Eliminate the rulemaking
authority....” stated a Farm Bureau spokesman. “The statute is complete in itself and
requires no supplemental rulemaking authority.”41
The rulemaking authority may have posed something of a dilemma for critics.
On the one hand, many of the concepts “used in the bill are not clearly defined and
will be given meaning only by regulation by the Secretary....” Conversely, the terms
of the bill “... would permit the Secretary to require almost any kind of information
he might desire” and “... could lead to the control of a large segment of domestic
migrant farmworkers.” This “broad ... grant of authority ... should be deleted.”42
“We feel,” asserted Robert Rea of the Virginia State Horticultural Society, “that
it should be mandatory” for the Secretary to issue a certificate of registration as a
migrant labor contractor to any person who files the required information and carries
a reasonable amount of insurance. “The mere threat of withholding a certificate,”
Rea stated, “... places the labor contractor under direct control of the Secretary of
Labor. This allows the Secretary to, in effect, dictate wage rates, housing and
working conditions that the crew leader must agree to or be threatened with loss of
the right to earn a livelihood.” The proposal, “as written,” he said, could “make the
cure worse than the disease.”43
Crossing State Boundaries. Concerning interstate commerce, Delmer
Robinson’s ranch straddled the Virginia-West Virginia frontiers. “You can almost
figure that an employee of mine operating a wagon with 10 people on it going from
one side of the orchard to the other is a migrant labor contractor, according to this
definition. I am sure,” he stated, “that is not what is meant” in the context of the
The definition of contractor is so broad, stated Joseph Dorsey, Frederick County,
Virginia, that it would “include any growers who hire and transport workers across
State lines, which many of our members have to do daily in making use of labor
within their various locations. Our association,” by virtue of its location, “draws on
several States for both regular and seasonal labor.”45 These definitions, stated
another grower, are so broad that even a Greyhound bus would require registration
if “10 or more” migrants were aboard.46
Hearings, Senate, 1963, pp. 227-228.
Hearings, House, 1963, p. 10.
Hearings, House, 1963, pp. 142-143.
Hearings, Senate, 1961, pp. 199-200.
Hearings, Senate, 1961, pp. 62-63.
Hearings, Senate, 1961, p. 174.
Hearings, House, 1961, p. 176. See also: Hearings, Senate 1961, pp. 62-63.
Financial Responsibility. During hearings in the House, Richard
O’Connell, the National Council of Farmer Cooperatives, was asked,
Is it not a fair and reasonable requirement to expect these crew leaders who
transport families of workers from one State to another to be financially
responsible to the migrant workers which they transport for personal injuries...
and property damage?
O’Connell thought the requirement was appropriate if the question were, in fact, that
explicit. However, O’Connell found the term “Financial Responsibility” to be obtuse
and questioned whether it meant bonding. “This is one of these vague terms that if
you start writing regulations on it it can mean anything.”47
Braceros Versus Domestic Workers
During the hearings of 1961, C. H. Fields (of the Farm Bureau of New Jersey)
was questioned by Representative Herbert Zelenko (D-NY).
Mr. FIELDS. ... New Jersey farmers do not use migrant labor because they want
to. They would much prefer not to use it if there were any other labor available
at a wage they could afford to pay....
Mr. ZELENKO. You said the New Jersey farmer would not engage migrant
labor if he could help it, but that he could not get local labor at the price he wants
Mr. FIELDS. At the price that he can afford to pay, I said.
Mr. ZELENKO. Would you be good enough to give this Committee ... what the
prevailing wage is in New Jersey for a farm laborer doing the type of work that
a migrant would do ...?
Mr. FIELDS.... $1.10 an hour.48
In the early 1960s, Congress had under consideration not only legislation
dealing with farm labor contractors but, as well, with the braceros.49 As it has
evolved, the bracero program (and later, the H-2A program) has been based upon two
Hearings, House, 1961, pp. 32-33.
Hearings, House, 1961, p. 235. Mr. Fields went on to state that, in South Jersey, the
prevailing wage was then $1.00.
The term bracero has a number of translations; but, in general, it refers to Mexican
workers brought into the United States under a guest worker program. The bracero is a
documented worker and should not be confused with the undocumented worker who has
entered the United States illegally and, if employed, is employed illegally. See Howard N.
Dillon, “Foreign Agricultural Workers and the Prevention of Adverse Effect,” Labor Law
Journal, December 1966, pp. 739-748; and CRS Report RL32044, Immigration: Policy
Considerations Related to Guest Worker Programs, by Andorra Bruno.
(A) there are not sufficient workers who are able, willing, and qualified, and who
will be available at the time and place needed, to perform the labor or services
(B) the employment of the alien in such labor or services will not adversely
affect the wages and working conditions of workers in the United States similarly
An adverse effect wage rate was devised that must be paid to both foreign and
domestic workers (where an effort has been made to employ the former), and which
was intended, nominally, to prevent a negative impact from employment of braceros.
Comparing Braceros with Domestic Workers. Gradually, domestic
employment and utilization of braceros became intertwined. “The documentation is
clear,” stated Vera Mayer, National Consumers’ League, “that the massive
importation of cheap foreign labor has lowered wages to American farmworkers and
taken away job opportunities from them.”51 Labor Secretary Arthur Goldberg seemed
to agree. “There is increasing evidence of the correlation between this large-scale use
of foreign workers in agriculture and the employment situation of our own
farmworkers.” He stressed that the central problems of migrant farmworkers were
the “lack of reasonably attractive employment opportunities” and “low wages.”52
Here, the Secretary and Ms. Mayer were not alone. The Rev. John Wagner,
associated with the National Council for the Spanish Speaking (of San Antonio),
suggested that the impact of the bracero program “is very great.” Father Wagner
opined, “... it throws another large number of unskilled workers into a pool that is
already overloaded with unskilled workers, and there becomes a mad scramble for
jobs.”53 Meanwhile, Father James Vizzard, then associated with the National
Catholic Rural Life Conference, posed the question: “What other group of farmers
or workers have to compete in the marketplace with ... workers brought into this
country by an agency of the Government, partly at taxpayers’ expense?”54
Triggs of the Farm Bureau explained that the “... domestic worker is often
severely disabled, physically, mentally, or psychiatrically or by reason of age. In such
cases,” he stated, “the employer should not be required to pay the same wages as for
an able bodied man. Whereas,” he added, “the Mexican workers are carefully
screened, they are mostly young, vigorous, able bodied.”55 Twiggs added, “If the
farmer prepays transportation for Mexican nationals it is with the assurance that the
worker will not leave the job after he arrives to work for somebody else.” Further,
he stated, the Mexican workers “are unaccompanied by their families” and, as a
8 U.S.C. 1188(a)(A) and (B). See also CRS Report RL32861, Farm Labor: The Adverse
Effect Wage Rate (AEWR), by William G. Whittaker.
Hearings, House, 1961, p. 211.
Hearings, House, 1961, p. 4.
Hearings, Senate, 1963, pp. 125-126.
Hearings, House, 1961, p. 145.
Hearings, House, 1961, p. 101.
result, “they need barracks type housing.” Finally, he stated, “... the hours of
employment are generally uniform and standardized.”56
Both labor and management witnesses seemed in agreement with respect to
domestic and Mexican crews. Arnold Mayer, of the Amalgamated Meat Cutters and
Butcher Workmen of North America (AFL-CIO), stated:
In the first place, the bracero is very docile, more so than even the domestic
migrants are. Over the bracero’s head hangs the threat that he may be sent back
to Mexico if he complains too much or if he kicks up too much of a fuss. He has
left his family, he expects to come back with some money, so he does not want
to be sent back without money.
Mayer agreed that the “bracero is carefully screened so that the workers that do come
from Mexico are prime labor.” As “single men,” the braceros have an impact on
housing. “The growers can erect barrack-type housing for them.” American migrants
“very often move with their families and housing and facilities for them are more
expensive.” Mayer stated, “... the growers know that this importation causes a
surplus of labor and that this surplus is very, very useful in keeping wage rates
down.” And, rather than “compete for labor,” the foreign workers are simply made
Sorting Out the Workers. “There is a clear interrelationship between the
administration of the migratory labor program and the administration of Public Law
78 [the bracero program],” stated Secretary Wirtz. If we can put domestic labor on
a sounder administrative basis, “which this bill would help us very much to do, it
would mean a lesser need for the use of Mexican nationals....” He referred to the
“floating group of American migratory workers” and observed, “I feel quite strongly
that the proper use of the crew leader can be of real advantage to the employing
farmer as well as to the employees.”58
During hearings in 1963, Representative Thomas Gill (D-HI) entered into a
dialogue with Richard Shipman of the National Farmers Union. Gill observed that
undocumented farm workers were sometimes cheated out of their earnings. Shipman
replied, “Of course, if a person is in this country illegally, he is at the mercy of
anybody, they have no rights....” Gill concurred: “... they are fair game for a shoddy
operator.”59 In some parts of Oregon, Gill speculated, undocumented labor makes up
Hearings, House, 1961, p. 103.
Hearings, House, 1963, pp. 136-137. Father Vizzard urged against the use of immigrant
workers. On page 149, he suggested “... I don’t think the way to help the Mexican economy
or the individual Mexican people is by using them as, in effect, strikebreakers against our
own people, for undercutting the wages and working conditions of our own citizens.” See
also comments of Senator Williams, Hearings, House, 1961, p. 53.
Hearings, House, 1963, p. 124.
Hearings, House, 1963, pp. 50-51.
about 20% of the workforce. In that particular region of Oregon, Representative
Roosevelt stated, “practically all of the recruiting was done for a sugar company.”60
Shipman concurred that the “wetback problem is of long standing.” He stated:
“In the total Spanish-speaking migrant group, approximately 20 percent enter the
United States on ‘border crosser permits’ ... on forged documents, or in the oldfashioned wetback manner.” Licensing would help. Roosevelt suggested that, under
the current proposal, suspension would follow if the contractor “has recruited,
employed or utilized the service of a person with knowledge that such a person is
violating the provisions of the immigration and nationality laws.” Such a person can
be refused a license, but is also “subject to penalty under the Act.” He further
pointed to a provision allowing the Secretary, under authority to obtain information,
to conduct a more specific investigation.61
Congressional Action on Contractor Registration
During the late 1950s and early 1960s, Senator Williams had sought controls on
farm labor contractors, and, though the measures were not adopted, he kept trying.
In 1963, legislation began to move. The contractor registration bill was called up for
Senate consideration on June 11, 1963. Williams explained the nature of farm labor
contracting, concluding that many contractors “perform their functions in [a]
satisfactory and responsible manner” — but that others “have exploited both farmers
At that point, Senator John Tower (R-TX) objected to passage of the bill,
stating, “I do not believe the measure is needed.” Tower agreed that there were
“occasional instances of crew leaders who don’t deal fairly with workers or farmers,”
but these cases “are disputable” and “exaggerated.” Since many states already
register farm labor contractors, the proposed legislation would be redundant, he
stated.63 No other Senator rose in opposition, and the Senate moved on to other
business. A few minutes later, the Senate switched back to the farm labor contractor
legislation and, following a brief discussion, passed the bill on a voice vote.64
It was more than a year before Representative Roosevelt called up the measure
in the House. The bill, he declared, was “essentially noncontroversial.”65
Representative Gill, the author of the bill, agreed that the bill was “a very minimal
piece of legislation” but “the need for this ... is very obvious.” Gill stated,
Hearings, House, 1963, p. 51. Reference was to prior comments that sugar companies
would not need to be covered since they were not involved (or only marginally involved)
in recruitment, and they are fixed site employers.
Hearings, House, 1963, pp. 51-53.
Congressional Record, June 11, 1963, pp. 10619-10621.
Congressional Record, June 11, 1963, p. 10621.
Congressional Record, June 11, 1963, p. 10625.
Congressional Record, August 17, 1964, pp. 19894-19895.
These crew chiefs deal with a type of labor ... which is often undereducated or
in many instances completely uneducated. The literacy level is generally low.
Their ability to understand their rights is ... minimal.
Many of these migrant laborers have no voting residence. They have no
Congressman ... nor do they have access to other officials who may help them
with their problems. Therefore, they are easy to victimize.
The bill “... would be of great assistance to the good crew leaders ... the vast majority.
It will prevent them from being daubed with the same brush used on the bad.”66
Indeed, the bill was noncontroversial. Representative Robert Griffin (R-MI)
rose “in support of this legislation.” Representative Charles Bennett (D-FL) similarly
expressed his “strong support” of the bill. “The migrant laborer should no longer be
neglected,” stated Representative William Fitts Ryan (D-NY). “This bill is belated
recognition of his plight.”67
Thereupon, the House passed the farm labor contractor registration legislation
by 343 yeas to 7 nays, though with several changes from the Senate-passed version.68
As amended, the bill was taken up in the Senate, passed by voice vote, and sent to
President Lyndon Johnson, becoming P.L. 88-582 on September 7, 1964.69
The Farm Labor Contractor Registration Act of 1964
Congress finds, the act began, that “certain irresponsible contractors,” by their
activities in the migrant labor field, have “impeded, obstructed, and restrained” the
flow of interstate commerce. Thus, Congress mandates that “all persons engaged in
the activity of contracting for the services of workers for interstate agricultural
employment comply with the provisions of this act and all regulations prescribed
hereunder by the Secretary of Labor.”70 In general, the act provided the following:
“The term ‘farm labor contractor’ means any person, who, for a fee,
either for himself or on behalf of another person, recruits, solicits,
hires, furnishes, or transports ten or more migrant workers ... at any
one time in any calendar year for interstate agricultural
“Such term shall not include (1) any nonprofit charitable
organization, public or nonprofit private education institution, or
Congressional Record, August 17, 1964, p. 19895.
Congressional Record, August 17, 1964, pp. 19895-19896.
Congressional Record, August 17, 1964, p. 19896.
Congressional Record, August 21, 1964, pp. 20874-20877.
All quotations, here, are from P.L. 88-582. However, the reader is urged to consult the
statute for more specific details.
similar organization; (2) any farmer, processor, canner, ginner,
packing shed operator, or nurseryman who engages in any such
activity for the purpose of supplying migrant workers solely for his
own operation; (3) any full-time or regular employee of any entity
referred to in (1) or (2) above; or (4) any person who engages in any
such activity for the purpose of obtaining migrant workers of any
foreign nation for employment in the United States, if the
employment of such workers is subject to (A) an agreement between
the United States and such foreign nation, or (B) an arrangement
with the government of any foreign nation under which written
contracts for the employment of such workers are provided for and
the enforcement thereof is provided for in the United States by an
instrumentality of such foreign nation.”
“ ‘State’ means any of the States of the United States, the District of
Columbia, the Virgin Islands, the Commonwealth of Puerto Rico,
“ ‘Migrant worker’ means an individual whose primary employment
is in agriculture ... or who performs agricultural labor ... on a
seasonal or other temporary basis.”
Certificate of Registration Requirement
“No person shall engage in activities as a farm labor contractor
unless he first obtains a certificate of registration from the Secretary,
and unless such certificate is in full force and effect and is in such
person’s immediate possession.”
The act observes of a “full-time or regular employee” holding a
valid certificate of registration: “Any such employee shall be
required to have in his immediate personal possession when
engaging in such activities such identification as the Secretary may
require showing such employee to be an employee of, and duly
authorized to engage in activities as a farm labor contractor for, a
person holding a valid certificate of registration under the provisions
of this Act.”
“Any such [regular or full-time] employee shall be subject to the
provisions of this Act and regulations prescribed hereunder to the
same extent as if he were required to obtain a certificate or
registration in his own name.”
Issuance of Certificate of Registration
The Secretary shall issue a certificate of registration to any person
who “has executed and filed with the Secretary” whatever
documents “the Secretary may require in order effectively to carry
out the provisions of this Act;” has filed with the Secretary
documentation “satisfactory to the Secretary of the financial
responsibility of the applicant” with respect to motor vehicles; and
“has filed ... a set of his fingerprints.”
“The Secretary may refuse to issue, and may suspend, revoke, or
refuse to renew a certificate of registration to any farm labor
contractor if he finds that such contractor” (inter alia):
— knowingly has given false or misleading information to migrant
workers concerning the terms, conditions, or existence of agriculture
— has failed, without justification, to perform agreements entered
into or arrangements with farm operators
— has failed, without justification, to comply with the terms of any
working arrangement he has made with migrant workers
— has failed to show financial responsibility satisfactory to the
Secretary ... or has failed to keep in effect a policy of insurance
required by subsection (a)(2) of this section
— has recruited, employed, or utilized the services of a person with
knowledge that such person is violating the provisions of the
immigration and nationality laws of the United States
— has been convicted of any crime under State or Federal law
— has failed to comply with any of the provisions of this Act or any
regulations issued hereunder.”
“A certification of registration ... shall be effective for the remainder
of the calendar year during which it is issued, unless suspended or
revoked by the Secretary as provided in this Act. A certificate of
registration may be renewed each calendar year upon approval by the
Secretary of an application for its renewal.”
Obligations and Prohibitions
The contractor will “ascertain and disclose to each worker at the
time the worker is recruited the following information to the best of
his knowledge and belief: (1) the area of employment, (2) the crops
and operations on which he may be employed, (3) the transportation,
housing, and insurance to be provided him, (4) the wage rates to be
paid him, and (5) the charges to be made by the contractor for his
“Upon arrival at a given place of employment, post in a conspicuous
place a written statement of the terms and conditions of that
“In the event he manages, supervises, or otherwise controls the
housing facilities, post in a conspicuous place the terms and
conditions of occupancy....”
In the event he pays migrant workers, to keep close and careful
records of all transactions and to make them generally available.
Authority To Obtain Information
“The Secretary or his designated representative may investigate and
gather data with respect to matters which may aid in carrying out the
provisions of this Act.” He “... may investigate and gather data
respecting such case, and may, in connection therewith, enter and
inspect such places and such records (and make such transcriptions
thereof), question such persons, and investigate such facts,
conditions, practices, or matters as may be necessary or appropriate
to determine whether a violation of this Act has been committed.”
Agreements with Federal and State Agencies
The secretary is allowed to enter into compacts with various state
and federal agencies with respect to enforcement of the act and
A penalty of not more than $500 is prescribed for violations of the
A limited system of judicial review is prescribed under the act.
Rules and Regulations
“The Secretary is authorized to issue such rules and regulations as
he determines necessary for the purposes of carrying out” certain
provisions of this act.
PART II: The First Years of the
Farm Labor Contractor Registration Act (1964-1974)
From 1964 until 1974, the FLCRA was given institutional life. Administration
of the act was set in motion and patterns of interpretation were developed. There
was, however, some criticism of the act and a sense that it had not lived up to the
hope and expectations of its authors.
The Inaugural Period
FLCRA focused upon one aspect of the issue of migrant and seasonal worker
protections: the farm labor contractor. In late December 1964, Secretary Wirtz
issued regulations under the act, and the Manpower Administrator, Bureau of
Employment Security, was given the responsibility as the authorized designee of the
There followed a series of directives published in the Federal Register dealing
with insurance and financial responsibility.72 However, some terms used in the
legislation seem to have lent themselves to vague patterns of interpretation. For
example, see the definition of farm labor contractor.
The term ‘farm labor contractor’ means any person ... [who] recruits, solicits,
hires, furnishes, or transports ten or more migrant workers ... at any one time in
any calendar year for interstate agricultural employment.
The official interpretation of the statute explores each of these concepts at some
length but, seemingly, without resolution.73
In 1969, under Secretary George Shultz, DOL underwent administrative
restructuring with FLCRA (and 28 other programs) assigned to the Assistant
Secretary for Manpower.74 Then, in 1972, under Secretary James Hodgson, a split
was effected with the labor standards aspects of FLCRA assigned to the Wage/Hour
See Federal Register, December 22, 1964, p. 18157, and February 3, 1965, p. 1139. It
was not until late 1972 that responsibility for FLCRA was shifted to the Wage/Hour
Division which normally deals with labor standards issues. See Federal Register, January
17, 1973, p. 1636.
See Federal Register, October 12, 1966, pp. 13174-13176, November 22, 1966, pp.
14772-14775, May 9, 1967, pp. 7025-7026, and July 20, 1967, p. l0649.
Federal Register, March 6, 1965, pp. 2945-2950. For example, the rule states, “... if a
person intends to recruit five (5) migrant workers one day for Farmer A and the next day is
requested to recruit and does recruit eight (8) migrant workers for Farmer B, these are
separate and independent acts and do not total up to thirteen (13) for purposes of the
statutory requirement. However, if he has contracts to hire a total of eighteen (18) migrant
workers for Farmers X, Y, and Z and he hires this number as a result of three days effort,
the statutory amount of ‘ten or more’ would be present.” But it concludes, “... the
application of these principles to other situations will depend on all the facts.”
Federal Register, April 15, 1969, pp. 6502-6504.
Division in the Employment Standards Administration. For more general
administration, authority was left with the Assistant Secretary for Manpower.75
Under the act, the Secretary was permitted to enter into a cooperative agreement with
state authorities where the states had roughly comparable laws. Where there might
be a refusal to authorize (or re-authorize) issuance of a certificate of registration, a
hearing would be scheduled before the Solicitor (after 1973, the Associate Solicitor)
of DOL or his designee.76 For a marginally educated farm labor contractor (if that
assessment were true), one might expect the total impact to have been a little
A Certain Dissatisfaction. FLCRA had not been entirely successful.
“Complaints have grown through the years,” observed Senator Gaylord Nelson (DWI), “that this first effort of the Congress was lacking in several areas....”78
During 1973 and 1974, further hearings were conducted on the issue. The
current system, some suggested, “... has been the source of massive abuse and
exploitation of agricultural workers.” Though Congress had recognized the problem
with adoption of FLCRA, the abuses have shown “no signs of moderating.”79 No
matter “how strong the vote in the Congress, it [farmworker legislation] usually
seems to be filed away in some cubbyhole without any appropriations, without any
committee staff, and the result in almost all cases has been nonenforcement.” In the
“9 years of the existence of this bill,” it was suggested, there “has been no
enforcement. It has been totally ineffective. It has been a dud.”80
Federal Register, October 20, 1972, p. 22660.
See Federal Register, January 17, 1973, pp. 1636-1637, and August 24, 1973, p. 22778.
Father John Kelly, Our Lady of Lourdes Church, Seaford, Delaware, stated that there had
been “a tremendous overlapping of intermeshing authorities....” He continued: “... we have
federal regulations, we have state regulations and we have local county implementation.”
Kelly further observed, “When one has a problem you have to deal with the hour and wage
[laws] and to deal with social security, you have to deal with health, education and welfare,
you have to deal with the local labor office and no one in any of these departments is quite
clear where” the migrant worker is located with respect to the several jurisdictions. “You
can spend days trying to establish a relationship with any particular office and no one is sure
at the end of the day whether he has a reason or not to handle your problem. Now for an
illiterate perhaps non-English speaking person, the difficulty is multiplied 1,000 times. And
the man who is supposed to solve all these problems is the crew leader.” Representative
William Ford (D-MI) would later concede, “We are painfully aware that it is very difficult
to tie it all together because of the multitude of Federal agencies that have fragmented
responsibilities in this area.” See U.S. Congress, House, Subcommittee on Agricultural
Labor, Committee on Education and Labor, Farm Labor Contractor Registration Act
Amendments of 1973, pp. 179 and 183. (Cited hereafter as Hearings, House, 1973.)
U.S. Congress, Senate, Subcommittee on Employment, Poverty, and Migratory Labor,
Committee on Labor and Public Welfare. Farm Labor Contractor Registration Act
Amendments, 1974. Fresno, Cal., February 8, 1974, and Washington, D.C., April 9, 1974,
p. 2. (Cited hereafter as Hearings, Senate, 1974.)
Hearings, Senate, 1974, p. 107.
Hearings, Senate, 1974, pp. 152-153. The speaker was Father James Vizzard, then of the
Problems Associated with FLCRA. New legislation may take time to
work through various impediments: FLCRA was no exception. From the testimony
before the House and Senate Committees, it was clear that problems were numerous.
A Lack of Penalties. The Departments of Labor and Justice seemed to feel
“that present penalties are insufficient to deter repeated violations,” and this “deters
them from pressing prosecutions,” a witness stated, urging “greater penalties.”81
Representative Augustus Hawkins (D-CA) posed the question to a group of
DOL Administrators: Bernard DeLury, Assistant Secretary for Employment
Standards; Warren Landis, Acting Administrator, Wage/Hour Division; and Eugene
Bonfiglio, Chief, Branch of Farm Labor Contractor Registration.
Mr. HAWKINS. What is the penalty at the present time for failure to register?
Mr. LANDIS. There is no specific penalty in the present law, unless there is a
willful violation, and then the present law provides a fine of up to $500.
Mr. HAWKINS. Has anyone been fined, and if so, how many?
Mr. LANDIS. I think one....
Mr. BONFIGLIO. Since the act became operative in January 1965, we have had
four cases that went to criminal court for prosecution. Of those four, two were
thrown out by the Justice Department, and two were finally prosecuted and fined
$100 in each case, and in one of the cases the fine was lifted.
Mr. HAWKINS.... I assume that under the law those who commit violations can
either have their registration revoked or other penalties imposed. Can you give
us any idea how many registrations have been revoked.
Mr. DeLURY. None, sir.
Mr. HAWKINS. None.
Mr. DeLURY. None this year.
What about last year?
Mr. BONFIGLIO. Last year we revoked three certificates and suspended two,
I believe. We had one employee who was denied based on a past criminal action.
A DOL spokesman stepped in to explain. The record “does not mean that crew
leaders are not violating [the law] or that we are not attempting to enforce the law.
Under the regulations ... the due process is required, we have to notify the crew
leader that we intend to revoke this certificate and give him time to request a
United Farm Workers.
Hearings, Senate, 1974, pp. 115-116.
hearing.” Then, there is the time factor. “If he requests a hearing ... the time element
usually goes beyond his stay in one place, and by that time he is gone or the end of
the season is on us.” Landis then observed that unless the violation “is pretty bad we
think it is better to get him into compliance and let him continue his work....” The
dialogue moved on.
Mr. HAWKINS. Well, the problem itself is not evaporating though; is it?
Mr. LANDIS. No sir. There still is a problem for the migrant workers, a big
Lack Of Staff. In response to Representative Hawkins, it was noted that there
were probably about 5,000 interstate crew leaders and another 3,000 intrastate crew
leaders. The figures “are not accurate,” Landis observed. “They are the best
estimates that we could make.” And, Landis continued, “... a little under 2,000” are
With more than eight years of experience under the act, Mr. Hawkins queried,
“Are you making any effort to see that those who are not registered become
registered? Who does the job of enforcing that?” Landis replied, “Well, that is our
job, of course, to register them and to call them to account when they are not
registered.” DOL was trying to deal with that “through investigations” and “through
public service announcements on radio and TV ... in both English and Spanish.”84
We are not here “to be critical of you gentlemen,” Representative William Ford
(D-MI) stated, when introducing the Department witnesses, but “to determine
whether ... we can find a way to make the law finally do what it was originally
intended to do.”85 However, a certain amount of criticism did emerge.
The 1963 Act “was never enforced because the bureaucrats who were given the
responsibility to enforce it did not get out of the regional offices,” argued Elijah
Boone of the Community Action Migrant Program in Immokalee, Florida. He alleged
that most of DOL’s staff (where crew leaders were concerned) were recycled “from
old rural manpower, which had already been shown to be ineffective.”86 Alcario
Samudia, now with the Wisconsin Department of Labor, recalled that when the crew
leader Act came into being in 1963, “... I registered ... but then we found out that the
Government did not have anybody to enforce the new laws, so many of us did not
even bother to register” after that.87 “It is a law,” explained Barbara Rhine, an
Hearings, House, 1973, pp. 108-109.
Hearings, House, 1973, p. 107.
Hearings, House, 1973, pp. 107-108.
Hearings, House, 1973, p. 60.
Hearings, Senate, 1974, pp. 230-231.
Hearings, Senate, 1974, pp. 217-218.
attorney for the United Farm Workers, “that everyone here claims and knows is not
Was the act fatally flawed? Or were enforcement officials jaded? Might the
problem have more to do with appropriations? According to Luke Danielson, a
former investigator for the Colorado Migrant Legal Services Agency, DOL officials
had advised him that “they lack[ed] sufficient investigative staff to process
complaints” — which resulted in this “abominable enforcement record.”89 Again:
Mr. FORD. How many field enforcement people were actually involved in
trying to check registrations ... of crew leaders prior to October 1972?
Mr. BONFIGLIO. We had five field men in 1972. In 1965, we had 40. In 1966,
that dropped to 17, and each year after that it declined down to 1972 when we
Elsewhere, Representative Ford concluded, “It would appear that if we were
operating with five people throughout the country to enforce this, knowing that we
have in excess of 6,000 possible people to be policed, that we have not very
aggressively ...” gone about enforcement of the statute.91
Other Issues. Clearly, other problems dogged enforcement of FLCRA during
its first 10 years rendering the act either unenforceable or, perhaps, innocuous.
Among allegations were the following:
The Language Question. Investigators were not always fluent in the language
spoken by the workers: Spanish, particularly in the West. Though some
announcements appear to have been made in Spanish, the cultural division was such
that, often, they were inappropriately positioned. Even in terms of payment and
Social Security, the pay stub may have been written in English, which “people don’t
Crew Leader Versus Grower. There had been, through the decade, an
intermittent conflict between the grower and the crew leader. If we could just “make
the grower responsible,” Landis stated for DOL, “... this would be the biggest boost
to getting these crew leaders registered.”93 Conversely, Daniel Boone of the United
Farm Workers charged that labor contractors “are used by the real employers, the
growers, to maximize the insecurity of the worker” by adding yet another level of
authority. The grower (farmer or company) “by the use of the contractor has
insulated itself from any responsibility” for payment, insurance, and related costs
Hearings, Senate, 1974, p. 36.
Hearings, Senate, 1974, p. 110.
Hearings, House, 1974, p. l09.
Hearings, House, 1973, p. 55.
Hearings, Senate, 1974, p. 50. See also Hearings, Senate, 1974, p. 110, and Hearings,
House, 1973, p. 108.
Hearings, House, 1973, p. 108.
associated with migratory employment.94 Luke Danielson argued “If the crew leader
is not in fact registered, make the farmer liable for the wrongdoings of the crew
Inflating Crew Levels. Guadalupe Murguia, a United Farm Worker rank-andfiler, testified that contractors exploit the growers by padding their payrolls with
grandchildren and great-grandchildren. “As an example, we discovered that the
contractors had people on their lists who had been dead for 4 or 5 years.” Where
there is contract work, the company “pays for the people that the contractor has on
his payroll.”96 Pablo Espinosa, also a rank-and-filer, affirmed, “I used to work for a
labor contractor where he used to come and tell me, put two or three more people on
the books. Put so and so and so on. Well, so and so don’t exist, I would say. Well,
you put them on. Who pays for that? The grower.”97
Inspector/Grower Collusion? There was a sense, among some workers, that
inspectors had become an adjunct to the growers. They, the inspectors, were
educated and, often, spoke a language different from the field workers. When abuses
were complained of, the inspectors “let them know that they are coming” to inspect,
which, from the workers’ perspective, tended to stack the deck against honest
inspection. “It doesn’t do any good to report anybody,” observed Jessie de la Cruz
of the United Farm Workers. “Nothing is done about it.”98 It was only by contacting
inspectors “on repeated occasions,” Danielson noted, “that we were able to get them
to take this complaint at all.”99 Again, “There is no incentive to understand the Act
as contractors know that the Act is not being enforced.”100
Amending the Statute
In some respects, FLCRA appeared to have had little impact. Demands for its
repeal (during the early years) seem to have been few.
“... I think it is appropriate for me to express a kind of personal ‘mea culpa,’”
suggested Father James Vizzard, an early backer of FLCRA. In the early 1960s, he
stated that “under the leadership of Senator Harrison Williams and his Senate
Migratory Labor Subcommittee, we were able to formulate and pass this
legislation....” But, he added: “Hindsight tells us now that, despite a great deal of
good will and technical competence, we really didn’t do a very good job of it.”
Father Vizzard opined,
Hearings, Senate, 1974, pp. 49-50.
Hearings, Senate, 1974, p. 105.
Hearings, Senate, 1974, p. 43.
Hearings, Senate, 1974, p. 45.
Hearings, Senate, 1974, p. 41.
Hearings, Senate, 1974, p. 105.
Hearings, House, 1973, p. 165. The speaker, Joe Alexander, is a former farm labor
contractor from Homestead, Florida.
First, at the time there was no organized grassroots body with sufficient
knowledge and experience to advise us of the day-to-day realities of farm worker
problems in all parts of our country. Despite extensive studies and hearings it
still was principally a group of us here in Washington ... who did what we
thought best, and as it turned out that wasn’t good enough.
Second, once a legislative battle had been won and a bill passed, our forces
tended to disperse and forgot the second half of the battle, namely,
appropriations. Almost every act we passed, therefore, was grossly underfunded
and continues to be so even to this day.
Third, and perhaps most important of all, we failed to build into the program
adequate and continuous enforcement. Without any exception that I can recall,
the agencies charged with enforcement have never done a satisfactory or, in very
many cases, even an honest job of enforcing these laws passed by Congress.101
Amendments would bring forth a new phase (and, in some respects, a more
turbulent phase) of the regulation of agricultural labor. As revision of the statute
proceeded, a number of issues emerged: some old, others new.
Changing Character of the Farm Labor Contractor. During hearings
in the early 1960s, the farm labor contractor had been somewhat disparaged. A
decade later, that view had mellowed. There were still tales of “short-counts” and
beatings of workers who ran into “disfavor” with the crew chief — but these were
issues with which DOL did not seem to become involved.102
“The great majority of these people,” suggested C. H. Fields of the Farm
Bureau, “are responsible businessmen who have made a significant investment in
their businesses and who make every effort to abide by the law.” Again:
... these people are small businessmen; they operate under extremely difficult
circumstances; they do not have the services of accountants, bookkeepers, or
legal advisors; and the more paperwork that is required the more apt they are to
call it quits and go out of business.103
Definitional elements entered the picture as well. Elijah Boone of the Community
Migrant Action Program (Immokalee, Florida) said that there were different kinds of
crew leaders. “A contractor might be a very well to do, upper middle-class white
businessman, who has money to invest in necessary machinery that a farm worker
would know of.” The contractor might be the person in charge of the contract and
“... then he would hire the crew leader who would recruit the labor....”104 Who might
be charged with the payment of the workers (and with making deductions for Social
Security and related matters) seems to have been unclear.
Hearings, House, 1973, p. 63.
Hearings, House, 1973, p. 155. See also Hearings, House, p. 118. DOL did have grower
complaints concerning funds forwarded to cover transportation costs of farmworkers.
Hearings, Senate, 1974, pp. 154-156.
Hearings, Senate, 1974, pp. 323-324.
Defining a Labor Dispute or Strike. Immigration officials, argued Father
Vizzard, appear “to be in the pocket of large-scale employers,” while “notorious
labor contractors have been allowed repeatedly to build up their strike-breaking
crews with these known illegals recruited throughout the Southwest.”105 Dan Pollitt,
now special counsel to the Subcommittee, questioned Vizzard. A contractor, Pollitt
suggested, was required to explain to contract workers “where they are going, wages,
housing conditions, and so on.” Pollitt asked, “Do you think it would be helpful to
add that you must also say whether or not there is a strike going on or whether a
contract is at its last stages of negotiations.” Father Vizzard responded: “Yes. I
But again, there were problems. Guinn Sinclair, president, National Farm Labor
Contractors Association, suggested an almost “complete lack of legislation” on labormanagement relations in the agricultural field as to what “constitutes a labor
dispute.” Sinclair questioned: “Why should a contractor be the judge when our
courts have issued conflicting decisions?” And: “Does a labor dispute exist when the
United Farm Workers Union issues a boycott of lettuce and table grapes?” Or, again,
when the Teamsters or the United Farm Workers, then in a contest for farmworker
loyalties, “claim jurisdiction and yet no laws exist to determine the will of the
workers themselves?” Sinclair protested, “... I don’t think the contractor should be
the one to decide that there is a dispute.”107
The Farm Bureau argued that agriculture “is exempt from the National Labor
Relations Act and farmers have no legal method to deal with labor disputes” and
“unfair labor practices.” Again, there were definitional issues: “... what constitutes
a strike, slowdown or labor-management dispute,” and when does “such a condition
exist at a particular farm.” Were a farmer to become engaged in such issues, the
proposal “could have the effect of determining whether or not his crop would be
harvested.” The Bureau continued, “Fruits and vegetables tend to reach the harvest
stage as determined by the inexorable laws of nature,” and a farm “cannot wait
around until someone,” perhaps the state or the federal government, “decides whether
there is a legally-constituted strike or labor dispute.” The provision, it stated, “would
seem to be an unworkable and unreasonable responsibility” to place upon
DeLury of DOL took a cautious attitude, suggesting that the provision was
“pretty broad” as written.109 Later, Bruce Burkdoll, speaking for the Central
California Farmers Association, charged that “a union or group of workers” could
create “a labor dispute, even though the union does not represent” the workers
Hearings, House, 1973, p. 64.
Hearings, House, 1973, p. 92.
Hearings, Senate, 1974, p. 32-33.
Hearings, Senate, 1974, p. 163.
Hearings, Senate, 1974, p. 142.
involved. He concluded, “... just because a student or someone else that never saw
you on your ranch stops in front and waves a flag, we just cannot live with that.”110
The Day Haul and the Shape-Up. The shape-up exists in most regions
from which growers or contractors recruit. “That is the place where the people gather
to find out whether there will be work that day, sometimes as early as 2 a.m.....” The
shape-up varies from one locality to another. So does the nature of the work
“The contractor ... will have the pick of the lot,” according to Barbara Rhine,
United Farm Workers attorney. “He will choose the strong, the young, the healthy....
Or the attractive women who have to turn a pretty face and act at the driver’s bidding
... Or the illegal alien, whom he can have taken back by the border patrol before he
pays the day’s wages.” If the character of the work is marginal, “then the shape-up
area will be filled with the local winos, the sad, stumbling men and women who are
so abject that all it takes is the promise of wine to get them into the fields.” Rhine
And so the people get on the buses and hard-seated trucks and try to sleep on
their way to work. If they get miles into the fields and find that it’s not the first
picking that they have been promised, or that there are no toilets and drinking
water, or that the gloves to protect their hands are torn, missing, or not provided
at all, then their choice is to work anyhow or walk back to town and miss the
whole day. If they complete the day’s work, they frequently get paid less than
the promise, and with deductions made for fees and transportation.
Further, she alleged that “If they get their slips showing the deductions for social
security and disability, they find out later when they are old and sick that the money
somehow never found its way to the proper State or Federal agency.”112
Rhine’s comments focused upon California, but, Theodore Dietz of the New
Jersey Department of Community Affairs explained the conditions of day-haul
workers in his part of the country — casual workers employed on a daily basis.
Both federal and state minimum wage laws are consistently broken.
“Many crew leaders go unregistered.” They disguise their function
as crew leaders by using a number of cars and “by carrying less than
ten people per vehicle.”
The crew leader provides “either insufficient information or
misinformation” to the worker. “Because there is no written
contract between the crew leader and worker, the worker may agree
to pick one crop and end up picking another at a different piece
Hearings, Senate, 1974, p. 172.
Hearings, Senate, 1974, p. 35.
Hearings, Senate, 1974, p. 35. See also Hearings, Senate, 1974, p. 154, for an analysis
by C. H. Fields of the Farm Bureau.
“Social Security deductions are never made for day haul workers,
eliminating many of them from eligibility when they reach 65.”
No statement of earnings, deductions or hours worked is provided to
“Day haul workers rarely are provided toilet facilities in the field and
occasionally no water....”
Children of a very young age are a part of the system.
“Arbitrary dismissals and blacklisting” are part of the day haul
“No protective clothing against weeds, rain or pesticides are ever
“No health or first aid services are available to day haul workers.”113
Proposed amendments tended to exclude day haul workers. Father Vizzard
(now of the United Farm Workers) expressed concern. “Our experience,” he stated,
“tells us that some of the grossest abuses against both farm workers and employers
are perpetrated by day haulers.” The rationale for this exemption is “‘because there
are so few inspectors.’ We think that the proper response to this fact is ... a notable
increase in enforcement staff.”114 David Sweeney, Political and Legislative Director
for the Teamsters, agreed. “We concur with the statement made by the United Farm
Workers in their testimony ... ‘We think that the proper response to this fact is, as
stated above, a notable increase in the enforcement staff.’”115 Further, Dietz observed
that exclusion of day hauling left him “in a word, dumbfounded.”116
Even DeLury affirmed DOL’s opposition to eliminating day haulers from
coverage. “This exclusion would deprive laborers working for a day-haul contractor
of guaranteed insurance protection and basic information about the job. These
guarantees,” DeLury stated, “are as important to the day worker as to the laborer who
works for a contractor over an extended period.”117
The Administration, however, was divided on the issue. Jack Donnachie, Rural
Manpower Service, DOL, raised the issue of practicality. “We do have some points
where we supervise day haul, as well as they can be supervised,” Donnachie stated.
But he cautioned that “... you are out on a public corner with a day haul” and you
“cannot stop a man,” he argued, when the recruitment takes place in a public space.
“We received a lot of criticism ... for day haul operations and justifiably so,” he
Hearings, House, 1973, p. 174.
Hearings, House, 1973, p. 63.
Hearings, House, 1973, p. 94. Sweeney proposed inclusion of day haulers in the bill.
Hearings, House, 1973, p. 174.
Hearings, House, 1973, p. 97. DeLury also stated: “In addition, some day-haul work is
interstate; this activity is covered under the current act. We oppose a change which would
exempt this interstate activity.” See also DeLury, Hearings, Senate, 1974, pp. 117, 147-148.
stated, “... so we are getting out of the day haul business as fast as we can get out
because we cannot control it.”118
As the hearings progressed, Representative Ford noted a certain level of caution.
If day haulers were included in the bill, “... it is obvious that we are going to be
picking up ... a situation that for some period of time would require constant day-byday monitoring.” He continued:
Mr. FORD. So we are talking about more manpower than we have heretofore
been using. Do you have any idea about what your additional manpower needs
would be, taking into account the additional enforcement power of the Act. Have
you given that any thought.
Mr. DeLURY. Yes, we have. Recently we went up before Mr. [Daniel] Flood’s
Appropriations Subcommittee and requested a supplemental budget for the
Employment Standards Administration, and in the area of farm labor contractor
registration work we ear-marked ... 10 additional positions for the coming
In an aside to Father Vizzard, Ford stated that “... there was not any intent on the part
of the authors of this bill to diminish our capacity to deal with the problem” of day
haulers: “... we are just trying to deal in priorities with the resources we have.”120
Interstate Versus Intrastate. The original labor contractor legislation
focused upon interstate transportation of migrant and seasonal workers. Ben
Robertson of the Wage/Hour Division explained that Florida crew leaders, under
current law, “would not need to be registered ... until they indicated or got ready to
move North. They would then come under the coverage of the act because of the
interstate character of the work.”121
An amendment to the act proposed to cover interstate intrastate operations. Fr.
Vizzard applauded the new section, noting that “many — and I would say perhaps
most — of the contractors operate wholly within one state. It is long overdue that
they be covered by the provisions of the law.”122 DeLury was equally supportive.123
And Alcario Samudia, the former crew leader from Wisconsin, urged that all crew
leaders “who recruit interstate or intrastate[,] regardless of whether they only recruit
for themselves or a combination of employers,” be registered.124
Hearings, House, 1973, p. 23.
Hearings, House, 1973, p. 102.
Hearings, House, 1973, p. 86.
Hearings, House, 1973, p. 23.
Hearings, House, 1973, p. 63. David Sweeney and William Grami, both from the
Teamsters, noted their support of intrastate coverage. See Hearings, House, 1973, p. 187.
Hearings, House, 1973, p. 97.
Hearings, Senate, 1974, p. 220. Under the 1964 legislation, growers who recruited
“solely for his own operation,” were not covered.
Fields of the Farm Bureau argued against this expansion. “We strongly urge
that it be made clear ... that it is not the intent of Congress to cover the intrastate
activities of farm labor contractors,” he stated.125 George Sorn, of the Florida Fruit
and Vegetable Association, urged that FLCRA continue to apply “only to crew
leaders who cross state lines.” Sorn stated that registration of other workers would
be a “needless expenditure of taxpayers’ money.” He continued: “We believe leaders
who operate only on an intrastate basis should not become subject to the Federal Act
in those states which have adequate crew leader laws of their own.”126
Establishing Responsibility: Growers Versus Farm Labor
Contractors. In FLCRA, as originally adopted, a “farmer, processor, canner,
ginner, packing shed operator, or nurseryman who engaged in” farm labor
recruitment “solely for his own operations,” shall not be included within the concept
of a farm labor contractor.127 Under the proposed amendments, the issue was raised
There was a sense, among advocates of a stronger FLCRA, that growers had, by
use of the contractor, “insulated” themselves from responsibility for a diverse range
of employer-associated responsibilities.128 At the same time, it was argued that the
farm labor contractor does not set policy but, rather, merely follows orders laid down
by growers. In south Texas, it was explained, the contractor does not set the rate of
pay or determine the hours of work. He merely follows established policy and is
nothing more, in effect, “than a crew foreman.”129 Barbara Rhine of the United Farm
Workers explained that “whoever recruits labor for the grower is nothing more or less
than his employee....”130
Some were willing to assign the contractor the role of an employee of the
grower. DeLury of Labor, however, supported a provision in the draft bill making
“growers liable for damages resulting from acts or omissions of unregistered farm
labor contractors with whom they have contracted for services.” He also
recommended “a provision to prohibit outright the use of unregistered crew leaders
by growers.”131 Joseph McAuliffe of the Wage/Hour Division noted an absence of
responsibility. Someone, “we don’t care which,” has to assume responsibility.132
This issue, grower versus contractor, would remain central to the debate on
FLCRA through the next decade. Much agricultural work seems to have been
conducted on a quasi-cash basis. Or, where there were more formal processes, it may
Hearings, Senate, 1974, p. 156.
Hearings, House, 1973, pp. 190-191.
See Section 3(b)(2) of P.L. 88-582.
Hearings, Senate, 1974, p. 49.
Hearings, Senate, 1974, p. 249.
Hearings, Senate, 1974, p. 37.
Hearings, Senate, 1974, p. 116. (Italics added.)
Hearings, House, 1973, p. 104.
have been unrealistic to expect a worker, thirty years hence, to attempt to prove that
he or she actually worked, for what period, and what was (or was not) taken out of
his pay. Pay stubs may be written in English and may be basically unintelligible for
non-English speaking workers. Given the migratory character of such workers,
compensation information may well have been lost with the passage of time.133
Immigration and Adverse Effect. Section 5(b)(6) of FLCRA provided that
the Secretary might “refuse to issue” or “suspend, revoke, or refuse to renew a
certificate of registration” if the farm labor contractor had “with knowledge” hired
workers in violation of the immigration and nationality laws of the United States.
As the 1974 amendment moved through the legislative process, there was an
effort to restructure this provision. Everyone, it seems, knew that undocumented
aliens were employed in American agriculture but, beyond that awareness, there
seemed little agreement as to a course to follow. Father Vizzard concluded: “It is
too easy for the crew leader or labor contractor to escape the impact of that section
of the law by simply claiming innocence, and who can prove to the contrary?”134
Much of the discussion focused upon knowledge. Rudy Juarez, a former farm
worker experienced with crew leading operations, suggested that “contractors and the
farmers [they represent] are heavily recruiting illegals from Mexico. Many times we
have reported this to the border patrol,” Juarez stated, “but they do not seem to be
interested until the harvest is over.” Senator Nelson inquired of Juarez: “I understand
you to say that the employers frequently pay transportation of the illegals.” Juarez
replied, “Yes, sir. For many years I was a contractor myself.”135
With one witness after another, though from different perspectives, the issue of
use of undocumented workers was raised. Identity papers, it was alleged, were easy
to acquire; but, once armed with fraudulent documents, who was to judge? “Since
the Border Patrol cannot determine who is an illegal in the United States,” opined
Guinn Sinclair, “we do not feel you should impose upon the contractor the absolute
law that he should know.” Sinclair and Nelson discussed the problem of
identification. “You know,” Sinclair suggested to Nelson, “that the magnitude of
Mexicans working in the United States is much greater than I think is conceived
here.” Part of the problem, the farm labor contractor suggested, rests with the
governments of the United States and of Mexico. But, notwithstanding the source
of the problem, “the contractor has no way of knowing who should be here and who
should not be here.”136
Mabel Mascarenas, wife of a farm labor contractor, questioned the “should
know” proposal. “Are people going to wear a sign that says ‘I am an alien,’ or are
we expected to act as Immigration Officers and know all the details of immigration
papers?” Much of the work on the farms deals with perishable commodities. “When
Hearings, Senate, 1974, pp. 49-50.
Hearings, House, 1973, pp. 87-88. See also Hearings, Senate, 1961, p. 130.
Hearings, Senate, 1974, pp. 226-227.
Hearings, Senate, 1974, pp. 183-184. See also, ibid, pp. 170-172.
we need people, and people come to us seeking work,”she said, “we hire them. We
are the most integrated business in America.”137
“It is our view,” suggested Joseph Phelan, National Council of Agricultural
Employers, “that the imposition of the provision prohibiting the employment of
illegal aliens would be tantamount to transferring to the employer a responsibility
which correctly lies with the Immigration and Nationalization Service.”138 The Farm
Bureau took a similar position. “On the surface,” it noted, the premise, “‘know or
should know’ to be in violation of the immigration laws,” some may find appealing.
But, “the question arises as to how a labor contractor is expected to know or
determine whether a given worker is in this country illegally.” The bill “is silent with
regard to any procedure a contractor would be expected to follow.” We urge “that
this subsection be deleted.” And it further stated: “The Immigration Service itself
has not been too successful in stopping illegal entries or discovering those who enter
Father Vizzard seemed unimpressed with arguments for use of illegals. He
suggested that if one were “to raise the wages and improve the working conditions”
under which aliens worked, American workers would be found. “When that happens
traditionally in any part of American economic life, there are American workers to
do the jobs.” The system, he stated, “... is simply a fraud and the disguise has to be
stripped back again and again and again.”140
A New Statute through Amendment
Although the issues raised during hearings on revision of FLCRA were of
substance, they seem to have attracted relatively little attention. With hearings
concluded, the Congress moved on to enactment of the farm labor amendments of
Bipartisanship Emerges in the House. In March 1974, Representative
Ford introduced a nonpartisan bill incorporating the findings of the hearings — at
least as they were understood.141 Ford thanked Earl Landgrebe (R-IN), especially, for
helping to invoke “a spirit of bipartisanship” that has resulted in a “unanimous vote”
Hearings, Senate, 1974, pp. 245-246. (Italics added.)
Hearings, Senate, 1974, p. 260. Phelan added: “Moreover, this provision poses the
question of whether you are crossing jurisdictional lines with the Committee on the
Judiciary. You will recall that this language was included in the proposed amendment to
the Fair Labor Standards Act last year and was subsequently dropped for that reason.”
Hearings, Senate, 1974, p. 163.
Hearings, House, 1973, pp. 89-90.
Congressional Record, March 7, 1974, p. 5694. Original sponsors were: Earl Landgrebe
(R-IN), Ella Grasso (D-CN), Frank Thompson (D-NJ), Gus Hawkins (D-CA), William
Lehman (D-FL), James O’Hara (D-MI), Lloyd Meeds (D-WA), Albert Quie (R-MN), David
Towell (R-NV), William Steiger (R-WI), John Erlenborn (R-IL), and Orval Hansen (R-ID).
in committee. The bill is “cosponsored by every member of the Subcommittee on
Agricultural Labor” and by other members on each side of the aisle.142
Bipartisan support was evident. “H.R. 13342 provides,” explained James
O’Hara (D-MI), “for stiffer penalties ... A civil remedy is made available in Federal
court for those aggrieved under the act.”143 Frank Thompson (D-NJ), with others,
emphasized that day haul workers would now be under the act.144 The bill “broadens
the definition of those covered,” stated William Lehman (D-FL), “to include crew
leaders recruiting for work done in the same State....”145 Landgrebe affirmed that the
Secretary will now “have an affirmative duty to monitor and investigate violations
of the law.” Both he and Albert Quie (R-MN) stressed that the grower will need to
“observe a certificate of registration in the possession.” At present, Representative
Quie stated, “the crew leader is required to display it, but no one is required to
observe it.” Quie reassured the growers: “We are not attempting to make the growers
joint employers with the crew leaders, nor are we attempting to make them
responsible for the crew leader’s unlawful actions.”146
At the end of the colloquy, the rules were suspended and the bill was passed on
a voice vote.147 The following day, the bill was dispatched to the Senate where it was
assigned to the Committee on Labor and Public Welfare.148
The Senate Concurs. It was October, six months later, before the bill
reached the Senate floor. Then, the Senate moved to strike everything after the
enacting clause and to insert its own language. Only two speakers addressed the
issue, each expressing disenchantment with the original FLCRA. Recent testimony,
observed Senator Williams, “... indicates that the act of 1963 has failed to achieve
some of its original objectives.”149 Similarly, Senator Javits noted: “After 10 years
of experience, ... we find that this act has largely been ignored and cannot be
While the provisions of the bill were briefly discussed, Senator Williams took
note of “one new provision which I deem to be of such importance, that I wish to
discuss it in some detail.” Williams explained that farm labor contractors
... will be subject to a criminal penalty of up to a $10,000 fine or a prison
sentence of up to 3 years (or both), if such contractor has knowingly engaged the
Congressional Record, May 7, 1974, pp. 13402-13405.
Congressional Record, May 7, 1974, p. 13405.
Congressional Record, May 7, 1974, p. 13406.
Congressional Record, May 7, 1974, p. 13406.
Congressional Record, May 7, 1974, pp. 13408-13409.
Congressional Record, May 7, 1974, p. 13409.
Congressional Record, May 8, 1974, p. 13619.
Congressional Record, October 3, 1974, pp. 33745-33746.
Congressional Record, October 3, 1974, p. 33746.
services of an illegal alien. Illegal alien has been defined to mean any person
who is an alien not lawfully admitted for permanent residence, or who has not
been authorized by the Attorney General to accept employment....
Illegal aliens have become an increasingly large source of farm labor in this
country, and the services of a contractor are often utilized to procure this
clandestine workforce. The existing act generally prohibits such activities by
making it grounds for revoking or suspending the contractor’s registration.
However, if this tide of illegal immigration is to be stemmed, stricter
enforcement and stronger penalties must be applied against those who violate the
act. These additional steps are necessary in light of the adverse effect such
importation of illegal aliens has had on the wages and job security of our
citizens, especially in times such as these of high unemployment. (Italics added.)
Williams quoted Leonard Chapman of the Immigration and Naturalization Service.
“‘There are probably from six to 10 million illegal aliens in the country today. They
are occupying jobs that unemployed Americans ought to have.’” No doubt, Williams
asserted, “illegal farm labor would account for a sizable share.”151
No one else spoke. Apparently regarded as routine, the bill was read a third
time and passed on a voice vote, but in a form different from that of the House.152
Compromise Is Reached. The Senate-passed bill was sent back to the
House where Representative Ford reported it. “Certain provisions in the Senate
amendment,” explained Mr. Landgrebe, “were very broad, would probably
discourage registration, and possibly make the act more difficult to enforce.”
Landgrebe stated, “Since this is a ‘crew leader’ bill, and not a bill covering farmers
or growers,” certain adjustments seemed in order. (Italics added.) Representative
Quie defended the growers. “The Senate version implicitly imposed upon growers
and processors — all those with whom a labor contractor provided migrant workers
— the obligation to enforce the act. In other words,” Quie stated, “the Senate
version held them responsible for the crew leaders’ abuses and failures. We did not
believe that it was necessary to hold a farmer criminally liable for the acts and
omissions of another.” He concluded, “... the responsibility for enforcing the act is
where it belongs — on the Secretary of Labor and not on the farmer.”153 The new
version retained the provisions concerning undocumented aliens.
Once again, the House voted to approve the measure on a voice vote and sent
the new bill back to the Senate.154 To this point, the two bodies had worked
separately. No conference had been requested: none was deemed necessary.
However, there now developed within the Senate a colloquy among Senators from
the Pacific Northwest and from Florida.
Congressional Record, October 3, 1974, p. 33746.
Congressional Record, October 3, 1974, p. 33747.
Congressional Record, October 11, 1974, pp. 35468-35471.
Congressional Record, October 11, 1974, p. 35471.
Senator Mark Hatfield (R-OR) commenced. Out in the Pacific Northwest, “...
we have a number of row crops and berries which lean heavily upon the use of
student labor.... This is usually under the leadership of school teachers or other public
education employees who take the responsibility of acting as crew leaders for these
students” or are under the supervision of parents who, collectively, act “as crew
leaders.” Hatfield asked a question: Does the bill “include or does it exempt such
cases as I have indicated — namely, teachers and public education employees and
parents who act as crew leaders?” Second, does the bill as, currently drawn, include
(or exclude) the permanent employee of the farmer (or, perhaps, the farmer himself)
who hired these people? Senator Nelson, for the subcommittee, concurred with
Senator Hatfield — and with Senator Warren Magnuson (D-WA) — in affirming that
the Department of Labor was “not to consider this type of activity” when enforcing
A second colloquy occurred with Senator Lawton Chiles (D-FL). In the bill, the
contractor could be exempt if his “recruitment activity is solely for his employer on
no more than an incidental basis.” Chiles agreed that “registration should be required
of the individual whose sole job is to hire and recruit migrant labor” but he had
concerns about the term “incidental.” He stated: “I do not feel that the committee
intended that regular employees who may perform some duties for their employer
relative to securing migrant labor are to be required to register. It is my
understanding,” he stated, “that the bill aims at those who on a full-time basis hire
or recruit migrant labor.” Senator Nelson noted that “the purpose of this provision
is to prevent farm labor contractors from avoiding registration by becoming the
employee of each and every grower for whom they recruit and hire migrant
workers....” But, it was not the intent of the act to include the “regular employee” of
the grower. Chiles was not yet entirely clear. “Even though this duty might be
considered to be an important aspect of his job responsibility by his employer ... , if
he were a permanent employee and continued to have other duties, he would not be
considered to have to register,” Chiles inquired. “The Senator is absolutely correct
in the manner in which he has stated it,” Nelson replied.156
Following a summary statement by Senator Williams, the Senate concurred in
the House-passed version of the bill. The vote was a voice vote.157
On October 19, President Gerald Ford returned the bill with a veto message.
“This bill contains provisions designed to strengthen the protections of migrant farm
workers ... which I support.” But he noted that the Senate has added certain
extraneous materials to the bill dealing with the federal personnel system. He
directed that Congress remove them and promised to “approve” the bill as
Congressional Record, October 16, 1974, pp. 35901-35902. Both Senators Hatfield and
Magnuson specifically endorsed the day haul provisions of the bill. However, for the next
several Congresses, that provision (in the context of youth labor under the Fair Labor
Standards Act) would remain very controversial.
Congressional Record, October 16, 1974, p. 35902.
Congressional Record, October 16, 1974, p. 35903.
amended.158 Senator Nelson had introduced S. 3202 in March 1974.159 That bill was
now resurrected, modified, and reported to the Senate on November 21160 — and was
adopted by a voice vote on November 22.161 The House concurred (by a voice vote)
on November 26.162 On December 7, 1974, the bill was signed into law (P.L. 93518).163
The 1974 FLCRA Amendments. The 1974 amendments represented a
tightening up of the initial Farm Labor Contractor Registration Act. The focus was
still primarily on the contractor. Inter alia, it provided the following:
The concept of “interstate” was stricken, affirming by implication that the
new act would apply as well to those persons operating within a state —
but having an impact upon interstate commerce.
The phrases “ten or more” and “at any one time in any calendar year”
It exempted from coverage any farmer or processor “who personally
engages in any such activity.”
Similarly exempt was any full-time or regular employee “who engages in
such activity solely for his employer on no more than an incidental
basis....” (Italics added.)
In order to deal with students and their elders (but to include day haul
operators), there was added: “any person who engaged in any such activity
(A) solely within a twenty-five-mile intrastate radius of his permanent
place of residence and (B) for not more than thirteen weeks per year....”
Added to the concept of agricultural employment was “the handling,
planting, drying, packing, packaging, processing, freezing, or grading prior
to delivery for storage of any agricultural or horticultural commodity in its
“No person shall engage the services of any farm labor contractor ...
unless he first determines that the farm labor contractor possesses a
certificate from the Secretary that is in full force and effect at the time he
contracts with the farm labor contractor.”
The applicant (contractor) must file a statement affirming that “each
vehicle” and the “housing” to be used by migrants “conform to all
applicable Federal and State safety and health standards” — to the extent
that they are under “the applicant’s ownership or control....”
Congressional Record, November 18, 1974, pp. 36246-36247.
Congressional Record, March 20, 1974, p. 7383.
Congressional Record, November 21, 1974, p. 36822.
Congressional Record, November 22, 1974, pp. 37040-37042.
Congressional Record, November 26, 1974, pp. 37372-37376.
Congressional Record, December 11, 1974, p. 39005.
The applicant (contractor) shall designate the Secretary as his agent to
accept “service summons” where he has departed from his original
address/ jurisdiction or “has become unavailable to accept service....”
The contractor must make known to the farm workers “the existence of a
strike or other concerted stoppage, slowdown, or interruption of
operations by employees at a place of contracted employment....”
The contractor must “refrain from recruiting, employing, or utilizing, with
knowledge, the services of any person, who is an alien not lawfully
admitted for permanent residence or who has not been authorized by the
Attorney General to accept employment....”
Any agreement by an employee “to waive or to modify his rights” under
the statute “shall be void as contrary to public policy” — except that a
waiver to the Secretary for enforcement purposes is valid.
The rights and obligations of the several parties were spelled out in some detail.164
Though certain segments of agriculture had reservations, the new amendments did
not seem to represent a threat — and, indeed, they had been approved, repeatedly,
with little debate and by voice vote.
PART III: Implementing a Revised Statute
By nearly all assessments, FLCRA had not been entirely successful in
alleviating problems associated with migratory labor.165 Revisions crafted during the
1973-1974 hearings brought some refinement of the statute. Few voices in Congress
had been raised against the statute. Still, the act was not perceived as threatening to
users of migrant workers.
Pressures Begin to Mount
In October 1975, the House Subcommittee on Agricultural Labor conducted
hearings on FLCRA. “As you may know,” commenced Representative John McFall
(D-CA), “my District in California includes the central part of the San Joaquin
Valley. This is one of the most productive agricultural areas in the country, and as
a result, agricultural labor is a vital part of the economic foundation of the area.”166
See P.L. 93-518 for precise wording of the amendments.
U.S. Congress, House, Committee on Education and Labor, Subcommittee on
Agricultural Labor, Oversight Hearings on the Farm Labor Contractor Registration Act,
Hearings, 94th Cong., 1st Sess., October 1 and October 11, 1975, pp. 113-136. (Hereafter
cited as Hearings, House, 1975.)
Hearings, House, 1975, p. 10.
McFall explained that DOL had failed “to adhere to ... clearly expressed
Congressional intent” but had also failed “to provide its field personnel clear
directions on the implementation of these  amendments.” It (DOL) had
required “a farm or ranch foreman” to register as a farm labor contractor though he
performed “many other duties” beyond worker recruitment. McFall had written to
Labor Secretary John Dunlop but had not yet received a response. While he was “not
opposed” to FLCRA or to the 1974 amendments (“I believe there is a need to ensure
that farm labor is not exploited by labor contractors,” he said.), his concern was over
the DOL’s failure “to provide an equitable and clearly defined implementation of the
Prior to the 1974 amendments, the focus had been on the plight of agricultural
workers. Now, it shifted to employers and to the structure of the industry. The
wrong people, it was argued, were being caught up in the Department’s net.
General Problems of Administration
We have had “statements of concern” (and “some compliments”) that DOL was
“too vigorous in its administration of the act” — and, conversely, that it “is not
vigorous enough,” stated Chairman Ford of the House Agricultural Labor
Subcommittee. The Congress has “used every device possible,” he noted, “... to
prod, criticize, and sometimes castigate the Labor Department to push for vigorous
enforcement of laws.” Still, the Committee does not want to “make compliance with
the law so unpalatable” that we end up “litigating while farmworkers receive no real
factual benefits from the enactment of the legislation.”168 Regulations had not yet
been proposed, Ford reminded DOL: “We are, in fact, developing a considerable
body of controversy in administration of this law because of the absence of these
DOL intends to continue our “enforcement efforts and our multi-media
information campaign,” DeLury stated, “and will get as many farm labor contractors
registered as possible so that the benefits of the law will be available” to the crews.170
Then, he turned to administration. We have “a total of 19 man-years assigned to the
Hearings, House, 1975, pp. 10-11. On Congressional opinion, see pp.85 and 93-94.
Hearings, House, 1975, p. 15.
Hearings, House, 1975, p. 16. DOL’s failure to publish regulations for the 1974
amendments seemed to permeate the entire proceedings. Robert Mills, Salinas Valley
Independent Growers’ Association (p. 284), stated: “I think the whole effort of the testimony
here today is, please, may we have some definitive regulations from the Department of
Labor and not try to define what we believe the intent of Congress is....” Similarly, Donald
Dressler, Western Growers’ Association (p. 273), taking note of litigation then before the
courts, stated, “We would wish ... that the court would have required the Department to first
draft regulations before they ran off in all these different directions.”
Hearings, House, 1975, p. 13. As of Sept 20, 1975, DeLury testified, “we had issued
3,718 certificates” — more than in prior years but less than expected with “approximately
10,000 or more” contractors that should be subject to coverage under the act.
activities under this Act” to cover the entire country.171 As one of the later witnesses
explained, “[m]ost of our [farm] workers are Spanish-speaking people.”172 As things
then stood, “... we do not have a Spanish-speaking compliance officer.”173
More Specialized Concerns with FLCRA
Older questions — whether dormant or never having been formally raised —
assumed a sharper focus. Since the regulations had not been released at that time,
there was a good bit of speculation about almost all aspects of FLCRA.
Internal Definitions. Representative Ford, speaking at the 1975 hearings on
FLCRA, suggested that “that the lack of definitions and uniform regulations” seems
to be the heart of complaints. He urged that the target date for release of the
regulations (then, by the end of November) be moved up “so that we can start solving
these problems before everybody ends up in court?”174 Robert Chase, Deputy
Assistant Secretary of Labor, assured Ford that regulations have received “priority
attention” but that it was impossible, just then, to provide “an earlier date.”175
For ten years under the act, it was assumed that everyone understood what was
meant by a crew leader or farm labor contractor or a migrant worker. After 1974,
however, definitions became more problematic. Some witnesses asserted that they
“had no objections” to the act176 and that FLCRA was “appropriate and reasonable”177
— so long as it was not their clients who were affected. “In our wildest dreams we
did not consider that the people which we represent,” stated industry spokesman R.
V. Thornton, “would be covered” under FLCRA.178
Who Is a Farm Labor Contractor? Representative McFall stated that he
had received numerous inquiries concerning DOL’s efforts to register a farm or ranch
foreman as a farm labor contractor. Under the 1974 compromise, a foreman might
be FLCRA-exempt if, in his regular work, he performs duties other than assisting his
employer in acquiring migrant workers. But, how might one distinguish between
primary and secondary duties? “Clearly,” DeLury objected, “this language does not
provide an exemption from the application of the law to all full-time employees.”179
Hearings, House, 1975, p. 14.
Hearings, House, 1975, p. 106.
Hearings, House, 1975, p. 53.
Hearings, House, 1975, p. 15.
Hearings, House, 1975, p. 16. Regulations were proposed, December 8, 1975, Federal
Register, pp. 57332-5733.
Hearings, House, 1975, pp. 258-259.
Hearings, House, 1975, p. 270.
Hearings, House, 1975, p. 252.
Hearings, House, 1975, p. 14. DeLury continued: “Certainly an employee of a grower,
whether full-time or not, who devotes all of his time or the majority of his time to farm labor
The relationship of the contractor to the grower was critical and, it would seem,
difficult to define. Does the contractor provide services (employees) to one employer
or to several? What services does he provide to the employees? What records does
the contractor keep? Guinn Sinclair observed of California:
We have examples of where a contractor has been successfully prosecuted, his
license has been revoked by the State, and the next day he is still with the same
crews working the same ranches, only now he is an employee of the ranch.
Clearly he is still a farm labor contractor....180
Conversely, if a grower provides farm hands to a series of farmers, when does he
cross the line from grower to contractor? Suddenly, such questions become relevant
— and, ultimately, perhaps, a subject of litigation.
And Who is a Migrant? How long might a migrant remain in one location
before he or she ceased to be migratory? Some workers are engaged by a firm (or
firms) in an area for two, three — ten months out of the year. Can a migrant also be
seasonal? “They come back every year. You see ... we have county housing.” “They
come there and they live in those houses until the crops are over.” “They are really
not migrant because they only come from Texas to Patterson [California]”181
Another witness stated, “To my way of thinking, a migrant worker is one who
travels away from his regular place of residence. A great many of these migrant
workers who move throughout the United States in agricultural labor, live and make
their homes in our immediate area ... ,” he stated. “They come back to that area about
this time of year and stay there, generally, until about May again.”182
Representative Ford asked about the responsibility for transportation while
recruiting. “The only time we ever go out and recruit anybody, we don’t recruit them
really, we just go down ... to Calexico. We have 23 foremen this year in cantaloups
and those 23 foremen will go out.”183 This would seem to recall the initial question
implied by Representative McFall: When is a foreman a regular employee and when
is he really a farm labor contractor? Conversely, does it really matter so long as he
or she is engaged in the work of a farm labor contractor?
Interpreting the Word “Personally”. In 1974, the concept of personally
was added to the list of exemptions. “While this language is clear with respect to
sole proprietors,” DeLury stated, “interpretative problems do arise with respect to
partnerships, associations, joint stock companies, trusts and corporations.” DeLury
explained how it might apply to an individual with the responsibility of “a sole
contractor activities is not within the exemption and such an employee should register under
the law.” (Italics added.)
Hearings, House, 1975, p. 261.
Hearings, House, 1975, p. 280.
Hearings, House, 1975, p. 68.
Hearings, House, 1975, p. 280.
proprietor” if he “acts personally with respect only to farm labor contracting activities
at the operation involved.” But, he concluded, such an interpretation may raise
problems of proof to be resolved on a “case-by-case basis.”184
Ford responded that he was “loath to suggest that his committee would ever
write anything that is ambiguous,” stating: “What we are really trying to do is find
the point at which we should ascribe responsibility for the employer/employee
relationship.” Again: “The farm labor contractor that we are trying to reach is the
Reaching the body broker, however, proved difficult. Some in agriculture
objected to DOL’s interpretation of personally: i.e., “... a farmer who operates as an
individual and performs all the activity ... without the assistance of any employee,
agent or contractor....”186 But firms have “a variety of arrangements” with the
A small grower may produce a crop to the point of harvest, then through one of
several arrangements, have that crop harvested by a shipper. The shipper will
harvest, pack and sell the crop, based on financial arrangements with the grower.
We also have large cooperatives which provide harvesting, packing, and sales
facilities for its [sic] grower members.
It was asserted that, in a large company, there could be “between 10 and 30 small
growers for whom some agricultural work is done by the company’s employees.”
Obviously, it was explained, “the owner does not personally engage in such activity”
but allows the duties to be “delegated.”187
In other cases, ownership itself becomes a factor. Where crops are harvested in
the field by a client (non-grower) making use of migratory labor (but, with the crops
still owned by a separate entity, the grower), who is the responsible party? If
ownership changes hands while the crop is in the field, does responsibility follow the
crops? There seemed, suddenly, a host of issues that may not have been considered
when FLCRA was largely unenforced — but, after the 1974 amendments, became
On an Incidental Basis. “A full time or regular employee of a farmer is
exempt,” wrote Dante Nomellini, a Stockton-based attorney for the growers, if he is
engaged in farm labor contracting activity for his employer “on no more than an
incidental basis.” The term, “‘incidental’ is not defined,” he declared, but the “plain
meaning” would seem to render him exempt if his “labor contracting function was not
his primary function or primary responsibility.”188
Hearings, House, 1975, p. 14.
Hearings, House, 1975, pp. 16-18.
Hearings, House, 1975, p. 97.
Hearings, House, 1975, pp. 258-259.
Hearings, House, 1975, p. 100.
What was plain to Nomellini was less so to DOL. DeLury, with other
Departmental witnesses, objected that the agency had received virtually no guidance
from Congress. “Unfortunately,” said Bobbye Spears, Associate Solicitor and charged
with preparation of the regulations, “the act does not think in terms of the primary
duty, nor does it tell us to look behind the subjective interest of the employer in hiring
a particular person.”189
Arguably, a case-by-case approach might have resolved the problem; but, in
practice, such discretion may have been ill-advised. For example, “a farmer’s or
processor’s operations manager, his personnel director, his foreman, or all of them,
may find that they must, for a temporary period, devote an unusual amount of their
time to soliciting, recruiting, or hiring workers.” In the process (for a brief period),
the amount of time expended might “substantially exceed” the time taken by a farm
labor contractor for roughly similar tasks.190
‘Who for a Fee ..’. Another aspect of FLCRA administration that caused
concern was interpretation of who, for a fee.... Perry Ellsworth (National Council of
Agricultural Employers) argued that the term, as used under the act, had several
potential meanings. A “fee” would seem to mean “a payment asked or given for a
specific service.” But DOL would argue that if a full-time employee “has any
dealings with agricultural labor, a portion of the salary that employee receives is a
‘fee.’”191 On this matter, Representative Ford wrote to Secretary Dunlop: “... I would
assume that the words ‘for a fee’ would not be construed to include any part of the
salary of a full-time or regular employee who, as part of his job, is required to
transport workers between a meeting place in the city and his employer’s farm.”192
As with many areas of labor policy, an answer may have been complex. For
example, the Benita Packing Company, one of the firms in contention, “goes into the
field with its own employees, harvests the crop, brings it to the packing shed, packs
it for market and sells the commodity on behalf of the grower,” stated attorney Donald
Dressler. “The grower pays a fee which covers the labor expense....” Benita Packing
“is in control of the workers at all times” and the “grower has no control or
involvement with them at all.” (Italics added.) In this case, to whom would FLCRA
apply — if, indeed, it would apply at all?193
Leon Gordon, counsel for the Agricultural Producers Labor Committee (a labor
co-op serving Arizona and California), also addressed the issue of fees. The
Committee is non-profit, but operates a series of worker-related activities.194 “Its
Hearings, House, 1975, pp. 19-20.
Comments of Perry Ellsworth for management, Hearings, House, 1975, pp. 89-93.
Hearings, House, 1975, p. 82.
Hearings, House, 1975, p. 94.
Hearings, House, 1975, p. 270.
Gordon testified, Hearings, House, 1975, p. 285: “They operate dining facilities, and in
some cases provide hot meals in the orchards. These camps provide recreation facilities,
books are zeroed out at the end of the year, and each grower defrays his exact
proportionate share of the cost of the labor and overhead expenses of the association
determined on a volume basis.” However, DOL “... has adamantly taken the position
that a fee is involved even in the case of a cooperative labor association....” (Italics
added.) The result was litigation — with Gordon drawn into court to protect the
Insurance. Under FLCRA, insurance was to have been roughly on a par with
common carriers used to transport passengers in interstate commerce. Several
concerns were voiced here — some focusing upon the character of the farm labor
The farm labor contractor “... is a small businessman. He has just one little truck
that he is trying to make a living with.... If he owns two or three trucks, it is just that
much more,” one witness stated. “It is the recordkeeping, the details. He does not
have a bookkeeper. In most instances, he cannot read and write himself very well.
He is being required to keep all these records that he just does not have any way of
doing.” “In the first place, many of them cannot afford the insurance requirements
even if they can find a company that will write the insurance.” Finally, he concluded,
“We do not quite understand why we should be required to furnish all of these buses
and all these high insurance requirements to transport people 5 or 6 miles. Many of
our workers are not transported more than just 10 or 15 or 20 miles.”197
Bobbye Spears, with the Solicitor’s Office, addressed the same issue — but with
a somewhat different twist. She recalled a recent case in which a farmer said that “I
have to have peas picked tomorrow and a neighbor farmer saying, I will be glad to
round up a crew of people and transport them down to your farm and pick your peas
tomorrow.” Ms. Spears noted: “The helpful farmer took his truck, which, in this case,
was an open truck, transported them down to the neighbor’s farm, they picked the
peas, and on the way back there was a wreck. There were several children under the
age of 12. I believe that three were killed.”198
Employment of Aliens
“Quite obviously, we anticipated that a central problem in dealing with this law
would be the problem of illegal aliens,” stated Representative Ford, “because it was
television rooms, chapels, and in some cases they provide counseling for the workers. This
housing and attendant facilities are provided on a cost or below cost basis to the workers.”
Hearings, House, 1975, pp. 285-287.
See Section 5(a)(2) of the act. The Secretary had some measure of discretion in this
Statement of Scott Toothaker, Texas Citrus & Vegetable Growers & Shippers, Hearings,
House 1975, pp. 67-69. Italics added.
Hearings, House, 1975, p. 20. See also section on Adams Fruit litigation, below.
one of the purposes we had in mind in amended the law.”199 Several factors were at
issue: the bureaucracy, employer-employee relations, and the local reaction.
Dealing with the Bureaucracy. Warren Landis of the Wage/Hour Division
affirmed that DOL had “worked very closely with ... Immigration and Naturalization”
but suggested the issue was “quite thorny.” Landis speculated,
What, in fact, constitutes knowing employment of illegal aliens and what are the
bona-fide efforts that a contractor would make so that he would be absolved of
knowing employment of illegal aliens? (Italics added.)
I wish we had a full answer this morning, but we do not. This is another situation
that we are addressing on a case-by-case basis.
Landis stated that he had “one case where we denied a certificate ... because of a
history of employment of illegal aliens” and we have “some other — perhaps similar
— cases that are pending.” John Silver of the Wage/Hour Division from Fresno noted
that “... the Border Patrol indicates to us that they believe that 30 percent of the farmworkers who are harvesting crops in California are illegal aliens. So,” he stated, “...
you can see that our problems are great.” Part of the problem may have been
linguistic. “There are groups where very few of them speak English. They cannot
communicate,” observed Joe Fernandez, with the Wage/Hour Division from Raleigh,
North Carolina, and “we have had difficulty locating a crew leader.”200
Ford turned to Bobbye Spears of the Solicitor’s Office. Do the contemplated
regulations have “any specific requirements” to show that a grower or farm labor
contractor actually “tried to know” the worker’s status? Spears replied, “We have
been working very closely with the INS lawyers and with the Attorney General’s staff
to see what would be reasonable within constitutional restraints.” She added, “What
could we require within the constraints of the Constitution? What sort of affirmative
duty could we place on the grower?” Spears stated, “We think we have a reasonable
set of requirements which we do intend to propose when the regulations come out.”
But, she added: “It is very tricky.”201
Reaction from the Industry. “The burden placed ... on the employer,” stated
Dante Nomellini, attorney for the growers, “to be able to identify an illegal alien” is
“unfair and in most cases the labor contractor or the farmer or any employer is not in
a position to accomplish an adequate interrogation of the individual involved.”202
Nomellini acknowledged that the statute says “knowingly,” but that the act still
placed an unfair burden upon the employer. An illegal, picked up and deported, may
end up back on the same farm — without the employer-grower being aware.
Hearings, House, 1975, p. 52.
Hearings, House, 1975, pp. 52-54.
Hearings, House, 1975, p. 54. This conversation took place some twenty years after the
end of the bracero program.
Hearings, House, 1975, p. 106.
You have to recognize that the farmer himself is not just one individual working
on the farm and he is not the one who goes out and supervises the worker and he
is not the one generally who has the contact. We have a language differential here
... most of the farmers are not fluent in Spanish nor are they capable, or their
agents, of interrogating that man to find out if he is legal or illegal without
violating that man’s rights.
He suggested, after analysis, that it can be asked “if he is a lawful resident of the
United States” and for “his name and social security number.” “We don’t have this
capability to interrogate. The Border Patrol, a very sophisticated group of people who
have been trained, even they have problems. The burden shouldn’t be placed on
Nomellini’s solution was direct. The State Department “ought to be asked to
cooperate with Congress in coming up with a situation where the individual who is
an illegal, once apprehended, is punished in a significant way so that ... he won’t come
back across the border.” The problem, he stated, “has to be attacked at its roots and
that is right at the border. If anything significant is going to be done to keep aliens out
— and I don’t know whether we want to, that’s a matter of policy....” (Italics added.)
It’s a matter for the Congress and for those directly involved: “... not the farmers and
not the labor contractors and not the general employers in industry.”204
The Local Reaction. Scott Toothaker, a management attorney from Texas,
lives right up against the Mexican border. And, that creates another dimension to the
problem. Some Spanish-speakers may be illegal — but others may be local.
How is this truck driver [picking up job applicants] with nothing more than a
second, third, fourth, or fifth grade education, to pass on whether that guy is an
illegal alien or not? They all have some kind of a card.... But I defy anyone in this
[hearing] room to tell me whether he is an illegal alien.
Ford responded that regulations — which “have not yet been written” — provide ways
through which to render an analysis. The presumption of knowingly employing an
alien “would have to be overcome by proving actual knowledge, and while it is less
than perfect, we do know that there are ... people who habitually rehire people.”205
Guinn Sinclair, representative of the farm labor contractors, voiced similar
concerns, suggesting that “the Department of State should be the one” to determine
Hearings, House, 1975, pp. 106-107.
Hearings, House, 1975, p. 107. Nomellini questioned, p. 98, the ability of the “foreman
and supervisors who are not sophisticated interrogators” to screen for illegal immigration.
“If it is your desire to keep illegal aliens out of the country then cooperation from the State
Department will be required and still penalties will have to be imposed upon the
apprehended illegal alien himself.” He added: “The slap on the hand and free transportation
to Mexico is not an adequate deterrent.” See also pp. 146-148.
Hearings, House, 1975, p. 77.
who is in the country illegally. “Trying to get the businessman to enforce the laws of
the United States just is not good.”206
Zora Arredondo was equally direct. A self-described “hillbilly from Kentucky
talking before all these lawyers,” queried: “Do you know what it is to need to have
your crops thinned, or weeded before you can irrigate and you have 1 or 2 days before
you get the water? Have you ever seen fruit that was falling on the ground ready to
be picked?” Moving on to policy implications:
If you need people and some come to the field wanting to work, you are going to
put them to work. The crop is the important thing, not who the man is or where
he comes from. Besides, the place to stop the illegal aliens isn’t there in the
fields, it is at the port of entry. (...) Do we have the right to ask people if they are
citizens? The Department of Labor doesn’t know the answer.
Ms. Arredondo turned to the Members: “Do you? When we do ask people for papers,
they tell you, ‘I don’t have to show you my papers.’ How many of us have anything
to prove we are U.S. citizens? I don’t.”207
New Regulations Released
On June 29, 1976, final regulations were published. Of 61 substantive
comments, items of principal concern were (a) the increased amounts of insurance
coverage, (b) the applicability of the amended act to include intrastate, as well as
interstate, farm labor activities, and (c) the proposed regulations relating to illegal
On insurance coverage, DOL “concluded that the increased amounts ... were
necessary to protect workers.” Coverage of intrastate farm workers was, of course,
part of the 1974 Act and could not be changed without legislation.209 Concerning
employment of aliens, the farm labor contractor was to give evidence of “an
affirmative showing of a bona fide inquiry of each prospective employee’s status as
a United States citizen or as a person lawfully authorized to work in the United
States.” The regulation provides a series of acceptable routes — birth certificate,
certificate of naturalization, passport, certain INS forms — through which a
determination might be made.210
Hearings, House, 1975, p. 262.
Hearings, House, 1957, pp. 277-279.
Federal Register, June 1976, p. 26820. See also Federal Register, December 8, 1975,
pp. 57332-57339, for the proposed regulations.
Federal Register, June 29, 1976, p. 26820.
Federal Register, June 29, 1976, pp. 26825-26826.
Coverage and Controversy
With the passage of time, some Members of Congress, with others, began to
reassess the impact of FLCRA and to urge modification of coverage. At least three
areas stand out: custom combining, poultry harvesting, and detasseling of corn.
Custom Combining, Hay Harvesting, and Sheep Shearing. On March
4, 1976, Representative Larry Pressler (R-SD) introduced legislation to exempt from
FLCRA “contractors of workers engaged in custom cutting or combine operations”
and “contractors of workers engaged in the shearing of sheep.”211 Roughly
comparable legislation was introduced on March 9 with two more bills on March
“In Nebraska, the major part of our extensive wheat acreage is harvested by
‘custom cutters,’” stated Representative Virginia Smith (R-NE). “These operations
do not involve migrant labor in the accepted sense of the definition,” she stated, “...
so all of the added precaution against abuses is not necessary.” Smith suggested that
these contractors and crew leaders “... should not be required to be registered, or to be
certified, or to meet the other requirements for insurance, transportation, and housing.”
Seeking exemption, she stated: “Otherwise, we have placed a hardship on the
agricultural equivalent of the small businessman and ... have subjected him to more
of that over-regulation which strangles and can eventually destroy.”213
Members from other grain growing states also suggested change. James
Abourezk (D-SD) introduced a new bill (March 18), observing that the 1974 FLCRA
amendments had “inadvertently expanded the scope of the law to cover sheep shearers
and custom combine crews.” Senators Lloyd Bentsen (D-TX) and Abourezk had met
with Department officials on the issue; Senator Nelson and Representative Ford had
written to DOL. These informal efforts, however, were of no avail.214
Senator Robert Dole (R-KS) explained the purposes of the exemption. FLCRA
was intended “to end abuses against migrant workers and farmers” by farm labor
contractors. While custom combining workers are migratory (starting in Texas and
moving on to the far north), they were really not migratory in the sense that farm
laborers might be. There was “no record of exploiting or abusing” of such employees.
As for safety and health requirements, “custom operators are already meeting the
standards necessary to protect their employees.” Thus, Senator Dole saw “no need for
the additional safety and health requirements” of FLCRA. He objected to “timeconsuming paperwork” and to requirements for “higher insurance. FLCRA was
intended for farmworkers “from a poverty-stricken environment,” who have “little or
Congressional Record, March 4, 1976, p. 5571.
Congressional Record, March 9, 1976, pp. 5955, 5956-5957, and March 11, 1976, p.
Congressional Record, March 17, 1976, pp. 6802-6803.
Congressional Record, March 18, 1976, p. 7108. See letter of Representative Ford and
Senator Nelson to William Usery, Secretary of Labor, February 23, 2976, reprinted in
Congressional Record, March 23, 1976, p. 7611.
no knowledge of the English language,” and are moved in “unsafe transportation.”
Dole concluded, “There is no similarity in any respect between farm labor contractors
and custom combine operators”215 — or sheep shearing crews, for that matter.
On March 23, Representative Pressler introduced yet another version of his
FLCRA-exemption bill — as did Representative Berkeley Bedell (D-IA).216 Bedell
had written to the Department on February 23, 1976, and, his request for exemption
having been denied, he called DOL and spoke with Herbert Cohen of Wage/Hour.
Cohen acknowledged receiving communications from Members involved in drafting
He [Cohen] then related that, despite this testimony, the Department decided to
proceed with the implementation of the new requirements because its lawyers felt
that the legislative history of the 1974 amendments did not specifically call for the
exemption of such crews.217
Bedell called the incident “a classic example of the executive branch using its
rulemaking authority to usurp the legislative function of the Congress” and of
“attempting to legislate by fiat.” Finally, he called upon the Congress “to thwart
executive excesses in the rulemaking area” by enacting corrective legislation.218
On March 23, as the Senate considered the Rural Development Act of 1972,
Senator Dole proposed FLCRA exemption of custom combine, hay harvesting, and
sheep shearing workers. Senators Abourezk, Bentsen, and Nelson were supportive;
without dissent, the amendment was adopted.219 The following day, Representative
Tom Foley, a Democrat from Washington state, called up the Rural Development Act
with the Dole amendment. Mr. Foley explained that the problem was “technical” —
that the issues were neither “labor contractors [n]or migrant laborers” but, rather,
“independent contractors who until now have not been subjected” to the FLCRA.220
The only other speaker was Representative Ford — who announced that, although the
subject matter of the bill should have been directed to a subcommittee of the
Committee on Education and Labor, he would not object.221
Congressional Record, March 18, 1976, pp. 7108-7110.
Congressional Record, March 23, 1976, pp. 7719 and 7720.
Congressional Record, March 23, 1976, p. 7689.
Ibid. Representative Bedell explained: “The original act exempted crews employing less
than 10 people from its registration requirements. However, in 1974, the statute was
amended to include any group which ‘recruits or transports’ more than one employee. This
numerical change technically brought small custom combiners and sheep shearers under the
law despite the fact that there is no specific reference to these groups in the legislative
history of the act.”
Congressional Record, March 23, 1976, pp. 7608-7612.
Congressional Record, March 24, 1976, pp. 7785-7786.
Congressional Record, March 24, 1976, p. 7786.
On April 5, 1976, the Rural Development Act (with the Dole amendment) was
signed into law (P.L. 94-259).222
Poultry Services. During the spring of 1976, a seemingly uncontroversial bill
was introduced dealing with internal Department of Agriculture administration. The
measure was passed by the House223 and was forwarded to the Senate. There, it was
reported on September 30, 1976, considered later that same day, and passed with an
Referred back to the House, Representative Tom Foley presented the measure
and the clerk read the title of the bill and the Senate amendments. At the conclusion,
a paragraph had been added amending FLCRA.
(9) any custom poultry harvesting, breeding, debeaking, sexing, or health service
operation, providing the employees of the operation are not regularly required to
be away from their domicile other than during their normal working hours.
Representative Edward Madigan (R-IL) queried: “I wonder if the gentleman ... could
explain the one amendment the Senate has placed on the bill.” Foley responded:
“...the Senate has placed on the bill a provision relating to the Farm Labor Contractor
Registration Act.” William Wampler (R-VA) added that the FLCRA amendment was
the only change in the House-passed bill.225
The bill was approved, sent to the White House and signed into law on October
1976 (P.L. 94-561).
To Detassel and Rogue Hybrid Seed Corn. During hearings early in
1978, Representative Virginia Smith complained about the “narrowminded and
ridiculous interpretations” of the “over-zealous bureaucrats at the Department of
Labor who don’t have anything better to do than harass our businessmen.” Smith
went on to discuss actions that “endanger yet another of the fragile freedoms that still
exist for individuals in this country.”226 She observed that “thousands of farmers”
have “come to Washington during the past few weeks in search of help to raise farm
prices.” To raise farm income, she seemed to suggest, farmers should be permitted
to pay less to the “several thousand high school students” who are hired each year “to
detassel seed corn, thin out test plots or rogue sorghum.” She stated,
... in no way can the salary from this job be considered as their primary means of
support. In many cases, it is more of a social event than a job. It also provides a
Congressional Record, April 6, 1976, p. 9554.
Congressional Record, July 26, 1976, pp. 23735-23741. See H.R. 10133 (94th Congress).
Congressional Record, September 30, 1976, pp. 33815-33816, 33866-33867.
Congressional Record, October 1, 1976, pp. 35170-35171.
U.S. Congress, House, Committee on Education and Labor, Subcommittee on Economic
Opportunity. Farm Labor Contractor Registration Act, Hearings, 95th Cong., 2nd Sess.,
February 22-23, 1978, pp. 35-36. (Cited hereafter as Hearings, House, 1978.)
good opportunity for a coach, high school teacher, or college student to pick up
some extra money and for the students to keep in touch during part of the summer.
Ms. Smith stated, “I believe that unless this law is changed to stop the action proposed
by the Department of Labor, we face a serious challenge to our freedom.”227
On April 11, Representative James Leach (R-IA) introduced H.Res. 1124
expressing the sense of the House “that certain individuals employed in the
detasseling of hybrid seed corn should not be considered to be migrant workers” for
purposes of FLCRA.228 Shortly thereafter, a bill was introduced by Leach that would
have amended FLCRA to deal with the same issue.229 No hearings were held: in
legislative terms, the issue seemed to disappear. Momentum, however, was building.
In September, the “Perishable Agricultural Commodities Act” (PACA) was
under consideration. Senator Richard Clark (D-IA) proposed an amendment to
FLCRA to correct “an example of government out of control.” The amendment
would exempt “a portion of the seed industry” from FLCRA registration. “These are
young people [with about 280,000 young persons who work seasonally] ranging in age
from 14 to 16 years old who work for an average of 10 days to 2 weeks each summer,”
Clark stated, and who “detassel seed corn, eliminate ‘rogue’ plants, and perform other
functions, related to seed production.” The employees are from the local area,
residing within a 30 to 40 mile radius, and who return to their home each evening, he
suggested. These people are “clearly not migrants by any reasonable definition.”230
His constituents “are very much up in arms about this,” he stated, “and ... I do not
It had only been through the past year, it was stated, that DOL had sought to
enforce FLCRA against the seed corn industry.232 On February 23, 1978, Senator
Hearings, House, 1978, pp. 36-37. Rep. Charles Grassley (R-IA), p. 49, questioned the
“loss of an important source of youth employment.” Rep. Charles Thone (R-NE), p. 43,
argued that “such stupid regulations” might force companies to turn “to mechanical methods
of detasseling and then what would this do to our employment problems?” In a letter,
February 28, 1978, pp. 40-41, later submitted for the record, Smith wrote to Secretary
Marshall and explained: “We have thousands and thousands of workers who will be affected
by this matter and are waiting to see if their government has the capacity to exercise some
restraint in its authority, and some common sense in its actions.” See testimony of
Representative David Stockman (R-MI), ibid, pp. 45-48, and comments of Richard
O’Connell, National Council of Farmer Cooperatives, Hearings, Senate, April 1963, pp.
Congressional Record, April 11, 1978, p. 9697.
Congressional Record, April 25, 1978, p. 11363.
Congressional Record, September 8, 1978, pp. 28565-28566. Senator Richard Lugar (RIN) stated, p. 28568: “Activities exempted include detasseling but also include activities
such as roguing and hand pollenation which are typically performed by young people.”
Congressional Record, September 8, 1978, p. 28566.
See comments of Senator Williams (D-NJ), September 8, 1978, Congressional Record,
Clark had addressed a letter to Secretary Marshall in which the issue was discussed
and followed that up with a phone call to Marshall and a personal visit with Assistant
Secretary Daniel Elisburg, but DOL “refused to change its position.”233 Senator
Richard Lugar (R-IN) similarly wrote to Marshall in late July, but without apparent
impact.234 Now, with no objection having been heard, an amendment was added to
PACA and a quarter-plus million workers were exempted from FLCRA.
The Clark amendment was accepted and approved by the Congress.235 On
November 1, 1978, the root bill was signed into law (P.L. 95-562).
The Lessening Coverage of FLCRA
Various segments of the agricultural industry had been eliminated from FLCRA
coverage as, it was argued, the wrong people were brought under the act’s purview.
Senator David Boren (D-OK) would later observe: “We could go through the entire
food and fiber industry, sector by sector, adopting amendments to clarify the act.” He
suggested that a wiser course would be to “enact legislation to clarify the act
completely once and for all.”236
Hearings in the House: 1978
In mid-1977, Representative McFall wrote once more to Secretary Marshall
concerning registration under FLCRA. McFall stated that farmers in his district (part
of the San Joaquin Valley) would be forced to register as farm labor contractors under
the definition of personally.237 Marshall’s response was less than some Members had
hoped, providing the context for the 1978 hearings.238
Starting from the McFall/Marshall correspondence, the hearings explored a
variety of FLCRA definitions. Most critics followed the lead of Perry Ellsworth
(National Council of Agricultural Employers). He did not seek to diminish worker
protections, but, that having been said, he continued to argue against the “untold
pp. 28568-28569, about the seed corn industry.
Congressional Record, September 8, 1978, p. 28566.
Congressional Record, September 8, 1978, p. 28568.
Congressional Record, October 13, 1978, pp. 36707-36709, 37113-37114.
Congressional Record, June 25, 1978, p. 16748.
See John McFall to Ray Marshall, June 30, 1977, reprinted in U.S. Congress, House,
Committee on Education and Labor, Subcommittee on Economic Opportunity, Farm Labor
Contractor Act, Hearings, 95th Cong., 2nd Sess., February 22-23, 1978, pp. 13-14. (Cited
hereafter as Hearings, House, 1978.) Others joining McFall in his inquiry to Marshall were
Robert Leggett, John Moss, B. F. Sisk, and Harold Johnson, all Democrats from California.
Hearings, House, 1978, pp. 14-16.
harassment” of farmers and others — who were “by no stretch of the imagination crew
leaders.”239 Many argued for the original intent of Congress.240
Day haul workers raised broader questions. Representative William Hefner (DNC) acknowledged that such workers had not been “inadvertently included under the
law.” Still, he urged the Members to “reexamine those intentions” and to exempt
workers living within a 75-mile radius of agricultural operations. “In North Carolina,”
he stated, “day haul workers are almost always, local, permanent residents of the area
in which they work.” They do not necessarily go through a labor contractor and, when
they do, “... it is more a matter of convenience rather than economic necessity.” He
stated: “Day haul workers are not migrant workers, as the term is commonly
understood.... And day haul operators, who transport these workers ... are not crew
leaders in the usual sense of this term.”241 (Italics added.)
But, if not migratory, such workers may still have been subject to transportation
provided by growers or contractors. “The gist of this problem seems to be in the
insurance coverage required of anyone defined by the law as a farm labor contractor,
whether he transports local day labor or true migrant labor,” Hefner stated. No one
suggests that day haul workers go unprotected, he stated, but they still have under state
insurance laws requirements similar to “all other workers in the State.”242
The issue was taken up by Representative B. F. Sisk (D-CA) in a letter to DOL.
Elisburg replied that state coverage varied “in accordance with the mandate of the
particular state legislation.” Such laws are work-related and apply only where “the
passengers are clearly ‘employees’ of the insured employer.” Dependents of migrant
workers are not covered, Elisburg continued. “In addition, liability under State
workers compensation plans would not extend to the times migrant workers are being
transported from one employer to a prospective employer.”243
These several issues were joined with respect to shared worker arrangements.
Representative David Stockman (R-MI) proposed that FLCRA should not apply to
farmers who shared the services of agricultural workers and who receive “no monetary
consideration” other than actual expenses. “The potential for abuse,” Representative
Stockman stated, “is in my view almost nil.”244 Elisburg responded that, “as an
enforcement policy,” DOL “would prefer to put our resources elsewhere” rather than
Hearings, House, 1978, p. 78.
Hearings, House, 1978, pp. 13, 42-43, and 48.
Hearings, House, 1978, pp. 21-28. Current radius was 25 miles.
Hearings, House, 1978, p. 23.
Hearings, House, 1978, p. 8. The correspondence between Rep. Sisk and Elisburg
appears on pages 7-12. See also comments by Rep. McFall on this issue, pp. 18-19.
Hearings, House, 1978, pp. 45-47. When introducing FLCRA legislation, Stockman
referred to “predatory bureaucrats” that have turned the law into “a weapon against the
farmer.” He explained (Congressional Record, June 20, 1977, p. 19982): “In the
Department of Labor’s eyes, the expectation that the laborers would return to his farm
became ‘valuable consideration’ to the farmer entering into a casual agreement with his
neighbor. This play upon words turned the farmers, he said, into ‘farm labor contractors.’”
come after small farmers who, on a local basis, share workers.245 The response did not
satisfy Stockman, and Representative William Goodling (R-PA) suggested: “He
[Elisburg] is saying if we had more resources we would get after them, too....” But
Elisburg stated, “... large or small, if we found abuses of the work force we would
go wherever they are.”246
Some urged that legislation exempt “nonprofit charitable organizations,” “public
or nonprofit private educational institutions,” and “bona fide nonprofit agricultural
cooperatives engaged in labor contracting for their own members.” Elisburg
suggested that such proposals were something of a ruse — and one that DOL would
oppose — that they would “substantially narrow the act’s coverage and would deny
its protection to large numbers of agricultural workers.” Elisburg stated,
We have been told by those who support this exemption that such organizations
are fixed and have assets which would be reachable in a law suit by their
employees. I think that we all have to recognize, generally, agricultural workers
do not have the financial resources to independently assert their rights against
such organizations, and we question why this economically disadvantaged group
should be placed in this position.
Further, Elisburg stated that “... employment by a nonprofit organization has nothing
to do with a need to protect agricultural workers under FLCRA, particularly if the
nonprofit venture consists of profit-making organizations.”247
“These individuals,” registered under FLCRA, are “not farmers; they were
‘agents’ who arranged to provide migrant labor to farmers,” Representative Stockman
affirmed. Many of them have “long criminal records. They stole from the workers,
they stole from the farmers, and they needlessly endangered the health and safety of
Yet, it was with these same, perhaps unscrupulous, middlemen that farmers dealt.
The contractors, some alleged, provided the services of low-wage and, often lowskilled workers: some Native Americans, some foreign-born — and some ineligible
to work in the United States. They broke strikes, some said, and prevented domestic
workers from organizing. Further, critics suggested that they provided cover for their
DOL, some urged, had “consistently misinterpreted” the rules governing such
contractors. Though he believed “that agricultural workers must be protected from
abuse by unethical crew leaders” (a consistent sub-theme of FLCRA critics),
Representative Leon Panetta (D-CA) protested that “family farmers” were “forced to
Hearings, House, 1978, p. 52.
Hearings, House, 1978, p. 52.
Hearings, House, 1978, pp. 54-55.
Congressional Record, June 20, 1977, p. 19982.
comply with complicated registration forms, maintain detailed records, and are subject
to a variety of investigations and inspections.” Faced with “growing anger” from the
farming community, Representative Panetta proposed a substantial restructuring of
Relations with the Department of Labor. Under date of October 24, 1979,
fifty-two Senators [led by J. Bennett Johnston (D-LA)] wrote to Secretary Marshall
expressing “our increasing concern” over DOL’s management of FLCRA.
The Johnston letter explained the purposes of the act (as the signers perceived
them) and observed that “farmers and certain other agricultural employers” are being
required to register — “a requirement we believe goes beyond any reasonable
interpretation of the law.” DOL’s actions, “apparently based on its own extremely
narrow interpretation” of the act, are “completely contrary to Congressional intent,”
and impose “an undue penalty and economic burden on those specifically exempted”
by Congress. “... these actions have resulted in a misdirection of the Department’s
limited resources at the expense of those the law was intended to protect.”250
Marshall’s response, dated November 26, 1979, offered few accommodations.
He agreed that enforcement of the act “be targeted on repeat and serious violations
which jeopardize labor standards....” Marshall observed that the first ten years “under
the Act” have not ended abuse. Thus, the 1974 amendments were enacted “to extend
coverage and improve enforcement.”
The Secretary acknowledged that a farmer (or other agriculturally-related person)
would be exempt if he or she “‘personally’ recruited migrant labor for their own
operation” and that “any full-time or regular employees of any incorporated farm or
agricultural business” might also be exempt if the employee “only performed farm
labor contractor-type activities on an ‘incidental’ basis.” On both issues, DOL had
We believe ... that FLCRA applies where there is a crewleader hiring or
transporting workers or where there are company employees substantially engaged
in activities generally performed by crewleaders. We also believe that it is critical
to enforce the Act in a way which discourages evasion of its provisions — to deter
farm labor contractors from being placed on payrolls and appearing to assume
the status of full-time or regular employees. This enforcement approach is
consistent with both the letter and spirit of the Act. (Italics added.)
The Secretary conceded that “the term ‘incidental’” may not have been defined “as
specifically as possible.” He therefore stated that, for the future, such a person would
be one “who does not spend more than 20 percent of his time in farm labor contracting
activities and performs that activity solely for his employer.” These changes will
Congressional Record, May 21, 1979, p. 11996. The Panetta proposal was only one of
a number of FLCRA-related bills that surfaced during the late 1970s and early 1980s.
See J. Bennett Johnston, with 51 other Members of the Senate, to F. Ray Marshall,
October 24, 1979, reprinted in the Congressional Record, November 14, 1979, pp. 3232232323.
provide “clarity [to] our enforcement position while at the same time preserving
important protections for farm workers under the Act.”251
The Senators were not entirely pleased with Marshall’s letter. On December 5,
1979, Senator Johnston [with Russell Long (D-LA)] concurred with Marshall’s
emphasis on “‘traditional farm labor contractors’” — and requested “a copy of
instructions being prepared for enforcement officers.” But, they disagreed on the
impact of such changes.
First, in order to know if an employee is engaged on more than an incidental basis,
he must be engaged less than 20 percent of some time period. Logically, the time
period should be his total manhours of employment. The failure of your letter to
specify a time period leaves open the possibility that ‘20 percent of his time’
means 20 percent of any work week, any work day, or any pay period. Any one
of these possible meanings would render the 20 percent standard ineffective as far
as strengthening the exemption provided by Congress.
Second, your letter is not specific about the meaning of farm labor contracting
activities. As we understand the Department’s interpretation of the Act,
supervision is considered to be a farm labor contracting activity. Since your letter
does not clarify this, the new definition of ‘incidental’ again becomes less
Third, your letter does not indicate what regulatory standing the new definition
of ‘incidental’ would have. The Department’s intent should have been set forth
in formal regulations, subject to public comment. Similarly, the interpretative
regulations for the Act itself are long overdue.252
Through the last year and a half that Marshall was in office, such correspondence took
on a regular pattern as first one and then another Member of Congress became
distressed with the provisions of FLCRA.
The Boren Amendment and the Panetta Bill (1980). During
consideration of the Child Nutrition Amendments of 1980, Senator Boren proposed
an amendment “to clarify the provisions” of FLCRA. “All of us,” he commenced, “...
want to see an end to any abuse of migrant farm workers. But, at the same time,” he
affirmed, “We very strongly want to assure that an additional regulatory burden is not
placed upon the farmers, the farm co-ops, and others involving agriculture across the
Senator Boren was critical of DOL administration of FLCRA. It had moved, he
stated, “far from the intent of the Congress” and of those who spoke on the 1963
legislation. The Department has been “subjecting farmers and other agricultural
employers, including their employees, to civil and criminal penalties for failing to
Labor Secretary Marshall to J. Bennett Johnston (with others), Congressional Record,
December 18, 1979, pp. 36850-36851.
Senators J. Bennett Johnston and Russell B. Long to Labor Secretary Marshall , reprinted
in Congressional Record, July 24, 1980, p. 19561.
Congressional Record, July 24, 1980, p. 19557.
comply with” the requirements of the act. Senator Boren listed organizations that had
“joined in support” of his amendment. He called upon DOL “to quit harassing the
farmers” and “to curb ... unnecessary abuse of authority by the bureaucracy.254
The Senate was split. Senator Gaylord Nelson noted that the bill was essentially
similar to S. 2875, introduced with 39 cosponsors a month earlier. Nelson urged that
Boren, having made his point, would “be willing to withdraw his amendment” and to
wait for hearings that had already been scheduled by his (Nelson’s) Committee. “As
the Senator knows, this law is within the exclusive jurisdiction of the Labor and
Human Resources Committee.” There was yet another option: i.e., S. 2789,
introduced by Senator Javits. Senator Nelson agreed that there have been “serious
problems” since enactment of the 1974 amendments. “Numerous lawsuits have been
filed, and both agricultural employers as well as farm workers have expressed
dissatisfaction” with DOL’s administration of this law — “and justifiably so, in my
opinion.” Senator Nelson noted that he had personally written to the Secretary
“expressing my concern.” But, he also affirmed that the proper place for
consideration of “corrective legislation” was the Labor and Human Resources
The Boren amendment, however, was not withdrawn and, on a vote of 57 yeas
to 37 nays, the measure was passed.256
The House was similarly divided on the issue. Representative Panetta, who had
earlier introduced general reform of FLCRA, was now joined by Representatives
Foley (of Washington State, chair of the Agriculture Committee) and William
Goodling of the Committee on Education and Labor, with numerous others.257 Panetta
The Farm Labor Contractor Registration Act was passed in 1963 to protect
migrant farmworkers from abuse by unscrupulous crew leaders. This act was also
intended to protect farmers and other agricultural employers from the
Congressional Record, July 24, 1980, pp. 19557-19558. Among groups backing his
amendment, Senator Boren listed: “The American Soybean Association; the American Farm
Bureau Federation, with some 3 million farmers as members; the American Frozen Food
Institute; the American Mushroom Institute; the American Seed Trade Association; the
American Sod Producers Association; the American Sugar Beet Growers Association; the
Florida Citrus Processors Association; the Florida Sugar Cane League; the International
Apple Institute; the National Broiler Council; the National Institute of Wheat Growers; the
National Cattleman’s Association; the National Cotton Council; the National Council of
Agricultural Employers; the National Council of Farmer Cooperatives; the National Food
Processors Association; the National Grange, with more than 500,000 members, made up
of farmers; the National Meat Association; the National Peach Council; the Pennsylvania
Food Processors Association; the Rio Grande Valley Sugar Growers Cooperative; the
Society of American Florists; the United Fresh Fruit and Vegetable Association; and the
Western Growers Association.”
Congressional Record, July 24, 1980, pp. 19558-19564.
Congressional Record, July 24, 1980, p. 19574.
Congressional Record, December 18, 1979, p. 36851.
irresponsible action of some crew leaders. I firmly believe that the act should
continue to serve that purpose.258
But it may need a few changes. “Unfortunately, in spite of the request of a majority
of the Senate, the problem has not been resolved,” Representative Panetta observed,
noting “misinterpretations by the Department,” “ambiguities in the act,” and “a
particular interpretation of its statutory authority.”259 Representative Goodling (with
John Ashbrook (R-OH), ranking Member on the Committee on Education and Labor)
offered an amendment “to clarify the act.” DOL, Goodling stated, has engaged in
“unnecessary and unproductive harassment” of many Pennsylvania farmers.260
In early September, Representative Goodling again addressed the House. His
amendments, he said, “except for technical improvements,” basically parallel the
Panetta and Boren proposals — which he urged his colleagues to support.261 Goodling
was not alone: “over 100 Members of the House” (including Panetta) endorsed the
Boren option.262 Representative Ford did not. “I strongly oppose the Boren
amendment,” he stated. “... it would effectively repeal the FLCRA, the only Federal
legislation that protects migrant farmworkers against the most common abuses they
endure in their hiring, transportation, housing, and employment in agricultural labor.”
Ford placed in the Record a letter from Ray Marshall in which he, too, expressed “my
deep concern and strong opposition” to the Boren amendment.”263
The Boren amendment, however, was caught up in parliamentary procedures and
migrated to a series of proposals. In a report for 1980, the CQ Almanac noted: “An
amendment restricting coverage of a 1963 law aimed at preventing exploitation of
migrant farm workers was added to a continuing resolution (H.J.Res. 637) but later
dropped.”264 For the present, FLCRA remained unchanged.
The Boren Bill and the Panetta Bill (1981). In the 97th Congress, critics
of the Farm Labor Contractor Registration Act returned to the fray. On April 8, 1981,
Senator Boren introduced S. 922, a measure designed “to provide for the proper
administration and enforcement of” FLCRA. Conceding that one problem has been
the “somewhat vague and ambiguous” language that had “resulted in gross
misinterpretation,” Boren’s proposal sought “to clarify” the meaning of the act.265
Congressional Record, July 24, 1980, p. 19456.
Congressional Record, July 24, 1980, p. 19457.
Congressional Record, August 26, 1980, pp. 23411-23413.
Congressional Record, September 9, 1980, pp. 28405-28406.
Congressional Record, September 9, 1980, pp. 24805-24807.
Congressional Record, September 10, 1980, pp. 25102-25103.
Congressional Quarterly Almanac (1980), Washington: Congressional Quarterly Inc.,
1981, p. 453.
Congressional Record, April 8, 1981, p. 6941. As a result of the 1980 election, Ray
Marshall was replaced as Labor Secretary by Raymond J. Donovan.
Senator Chiles, co-sponsor of the Boren bill, having “stressed my support” for
the purposes of the act, stated that FLCRA’s “vague language and convoluted format”
allows DOL to “subvert ... the intent of Congress” and to take advantage “of these
procedural defects in its unrelenting efforts to envelop farmers, packers, processors,
and their employees within the regulatory scheme of the act.” The result has been
“widespread harassment” of agricultural interests with “little discernable effect” with
respect to crew leaders. Farmers “face enough problems in today’s economy without
On May 20, 1981, Representative Panetta introduced H.R. 3636, similar in some
respects to his bill from the 96th Congress.267 FLCRA remains, he stated, “a
significant problem of unnecessary and burdensome regulation” which has “grown as
more and more farmers and other fixed-base agricultural employers” have found that
they are required to comply with its terms.268
In the interim between introduction of the Boren bill and Panetta bill, however,
there had been a discernible change. The Education and Labor Committee,
Representative Panetta announced, “is contemplating hearings” on the issue this year,
and there is “no doubt in my mind that we can work out the problems that exist with
the act.” Panetta wrote into his bill several proposals which may have been viewed
as the start of compromise. First: He proposed to eliminate the “distinction between
‘full-time or regular’” and to make clear the distinction between “a bona fide
employee and an independent contractor.” Second: He proposed to allow the
Secretary some discretion in causing “a cooperative to register,” depending upon the
purposes of the co-operative arrangement. Third: He proposed a modification in the
definition of “day-haul worker” with the stated intention of securing their
“It is in this constructive spirit,” Panetta affirmed, “that I look forward to
working with my colleagues on the Committee on Education and Labor, and
particularly with my good friend from California (Mr. Miller), who is chairman of the
Subcommittee on Labor Standards.”270 But, negotiations would be long and intense.
Congressional Record, April 8, 1981, p. 6943.
In the 96th Congress, the Panetta bill carried the names of 160 Members. See
Congressional Record, May 20, 1981, p. 10353.
Congressional Record, May 20, 1991, p. 10353.
Congressional Record, May 20, 1981, pp. 10353-10354.
Congressional Record, May 20, 2981, p. 10354. Both the Boren and Panetta bills were
superceded by the Administration’s bill, introduced by request by Representative Miller.
The Miller Hearings and Their Aftermath (1982)
From the spring of 1981 and into the fall of 1982, the several parties at interest
met and reviewed proposals for revision of FLCRA. From all sides, there were
serious concerns “with the existing law that they felt needed to be addressed,”
according to Representative George Miller. Negotiations, he stated, “were long and,
at times, frustrating.”271 Finally, on September 1, 1982, Secretary of Labor Raymond
Donovan sent to Congress a bill entitled the “Migrant and Seasonal Agricultural
Worker Protection Act which was referred to the Committee on Education and
The Hearing. On September 14, 1982, Miller called together for a single
hearing the Subcommittee on Labor Standards. The bill at issue was H.R. 7102, an
Administration proposal but with more generalized backing. Robert B. Collyer,
Deputy Under Secretary of Labor, was the first witness. Reviewing the recent history
of the Administration’s bill, Collyer affirmed,
This cooperative effort has now resulted in a consensus bill, endorsed by the AFLCIO, the migrant legal action program, and by major agricultural employer
organizations, such as the American Farm Bureau Federation, the National Food
Processors Association, and the National Council of Agricultural Employers.
While none of these groups believes the bill to be ideal from its individual
standpoint, there is important agreement that the bill materially improves the
The 1974 FLCRA amendments, Collyer explained, had resulted in “a great deal of
litigation.”274 The essence of the new bill was compromise.
Representatives from industry and the AFL-CIO endorsed the changes in policy
included within the new bill.275 Representatives of farmworkers were more skeptical,
but acquiesced.276 As the hearing closed, Representative Miller thanked the witnesses
U.S. Congress. House. Subcommittee on Labor Standards, Committee on Education and
Labor, Hearings on the Migrant and Seasonal Agricultural Worker Protection Act,
September 14, 1982, p. 1. (Cited hereafter as Hearings, House, 1982.)
U.S. Congress, House, Committee on Education and Labor, Migrant and Seasonal
Agricultural Worker Protection Act, H.Rept. 97-885, September 28, 1982, p. 4. (Cited
hereafter as House, Committee Report 97-885, September 28, 1982.)
Hearings, House, 1982, p. 43.
Hearings, House, 1982, p. 44. Collyer, p.50, proceeded to thank “all those persons and
organizations who participated in the cooperative effort over the past 18 months to develop
See testimony of Jay Power, Legislative Representative, AFL-CIO, and of Perry
Ellsworth, National Council of Agricultural Employers, Hearings, House, 1982, pp. 54-60.
See testimony of William Beardall, staff attorney, Texas Rural Legal Aid, Marc Schacht
of the Farmworker Justice Fund, and Garry B. Bryant, an attorney from Tucson with several
for their support. “I take a great deal of pride in seeing that I am not the victim of
testimony 5 years down the road, that it didn’t work.” Miller stated: “... I do recognize
that a good number of your associates and clients are very skeptical about entering
into this agreement.” Again: “I don’t know if this law is perfect or not. I think it’s an
improvement, and I gather from your testimony that you believe it is an
Consideration and Floor Action. “The failure of current law to achieve its
goal of fairness and equity for migrant workers,” the House report stated, “combined
with employer objections as to their treatment under the Act” gave the negotiations
momentum and “made the attainment of legislative change obligatory.”278 FLCRA
as amended, had “failed to reverse the historical pattern of abuse and exploitation of
migrant and seasonal farm workers” and, as a result, argued for a “new approach.”279
The Committee on Education and Labor reported the bill on September 28, 1982.280
On September 29, Representative Miller urged that the rules be suspended and
H.R. 7102 be passed. Recounting the “months of negotiations and compromise,” he
noted the certainty that the legislation might bring.281 John Erlenborn (R-IL), a cosponsor, recalled that “for over 18 months the interested parties, including staff from
the House and Senate majority and minority, have been engaged in negotiations” to
work out a successor to FLCRA. Representative Panetta affirmed that the bill
“eliminates undue red-tape and harassment for farmers ... while at the same time
provides real protection to migrant and seasonal agricultural workers.” Representative
Goodling, for his part, cited the “unwarranted and overzealous tactics of the wage and
hour division”but, at the same time, he acknowledged that the “long negotiations
between all parties” had made the new bill possible. Finally, the debate closed. The
rules were suspended: the bill was passed — on a voice vote.282
In the Senate, the bill was held at the desk (not referred to a committee)283 until
on December 19, 1982, Senator Howard Baker (R-TN) called up the measure for
floor action. Senator Orrin Hatch (R-UH) remarked that the measure, now passed by
the House, was “identical to the measure” that he had introduced in the Senate (S.
2930) — with Senators Boren and Edward Kennedy (D-Ma), among others, as co-
years representing agricultural employees, Hearings, House, 1982, pp. 60-173.
Hearings, House, 1982, p. 174. See also Representative Panetta’s statement, September
14, 1982, p. 23441. Panetta was a co-sponsor of the legislation.
House, Committee Report 97-885, September 28, 1982, p. 1.
House, Committee Report 97-885, September 28, 1982, p. 3.
Congressional Record, September 28, 1982, p. 25609.
Congressional Record, September 29, 1982, p. 25609.
Congressional Record, September 29, 1982, pp. 26008-26010.
Congressional Record, September 29, 1982, p. 25866.
sponsors. Senator Hatch reviewed the history of FLCRA and presented an analysis
of H.R. 7102. As in the House, the bill was adopted by a voice vote.284
On January 14, 1983, H.R. 7102 was signed into law by President Ronald Reagan
(P.L. 97-470). The new law “will result in substantially improved protection for
migrant and seasonal agricultural workers,” he said, “many of whom are
disadvantaged minorities.” Conversely: “We will continue our efforts to both reduce
unnecessary regulatory burdens and at the same time, protect essential employment
standards in America’s workplaces.”285
Part IV: A New Statute Emerges (1983 ff.)
With enactment of P.L. 97-470, FLCRA disappeared. In its place was a new
statute: the Migrant and Seasonal Agricultural Workers Protection Act (MSPA). For
more than twenty years, MSPA has been generally (though not entirely) free from
The Structure and Provisions of the New Law
MSPA has remained largely unchanged since its enactment.286 Although its
terms are spelled out in detail adapted to specific farmworker employment situations,
its structure is relatively simple.
The introduction states the purposes of the act: i.e., to require that farm labor
contractors register with the Secretary of Labor and to assure “necessary protections
for migrant and seasonal agricultural workers, agricultural associations, and
agricultural employers.” It then proceeds to a list of definitions used: inter alia,
“agricultural association,” “agricultural employer,” “agricultural employment,” “dayhaul operation,” “employ,” “farm labor contracting activity,” “farm labor contractor,”
“migrant agricultural worker,” “person,” and “seasonal agricultural worker.”287
The act includes exemptions — i.e., some family farms and related agricultural
industries. Also exempt are labor organizations, any “nonprofit charitable
organization or public or private nonprofit educational institution,” and any person
“engaged in any farm labor contracting activity solely within a twenty-five mile
interstate radius of such person’s permanent place of residence and for not more than
thirteen weeks per year.” Custom combining, hay harvesting, or sheep shearing
operations are exempt, as are persons engaged in custom poultry harvesting, breeding,
Congressional Record, December 19, 1982, pp. 32458-32466.
Public Papers of the President of the United States. Ronald Reagan, 1983. Book 1,
January 1 to July 1, 1983. Washington, U.S. Government Printing Office, 1984, p. 47.
See the Adams Fruit case, discussed below.
All language, where in quotation marks, in this section is taken from P.L. 97-470.
However, some variation may result from codification and from subsequent amendments
that impinge upon the act. This is a summary. The reader may want to consult the current
text of MSPA.
debeaking, etc., where workers are not required to be away from their permanent place
of residence overnight. Persons are exempt when their “principal occupation ... is not
agricultural employment” and who provide “full-time students” to detassel corn, etc.,
when such students are not required to be away from their permanent place of
residence overnight. Any “common carrier” who would be a farm labor contractor
solely because the carrier is engaged in transporting migrant or seasonal agricultural
workers is exempt.
Title l explains the conditions under which farm labor contractors are required
to register and the process of registration. The registrant must be of good character
(specified in the act), with right to appeal if he or she is denied registration. A
certificate of registration may not be transferred or assigned and will normally cover
a twelve-month period. Any change of address (or other material variation in
registration) must be made known to the Secretary. Finally, the farm labor contractor
is restricted from hiring aliens not authorized to work in the United States.
(a) No farm labor contractor shall recruit, hire, employ, or use, with knowledge,
the services of any individual who is an alien not lawfully admitted for permanent
residence or who has not been authorized by the Attorney General to accept
“(b) A farm labor contractor shall be considered to have complied with subsection
(a) if the farm labor contractor demonstrates that the farm labor contractor relied
in good faith on documentation prescribed by the Secretary, and the farm labor
contractor had no reason to believe the individual was an alien referred to in
Title II deals with migrant agricultural workers.289 Each “farm labor contractor,
agricultural employer, and agricultural association” who employs a migrant
agricultural worker shall disclose to the worker at the time of his or her recruitment:
the place of employment, the wage rates to be paid, the crops and kinds of activities
on which the worker may be employed, the period of employment, matters with
respect to housing, transportation, and “any other employee benefit to be provided, if
any,” and “any costs to be charged for each of them.” The existence “of any strike or
other concerted work stoppage, slowdown, or interruption of operations by employees
at the place of employment” must be disclosed. Any commission arrangements must
also be disclosed. At each place of employment, in a conspicuous place, a form from
the Secretary “setting forth the rights and protections afforded” to such migrant
This section was subsequently repealed and its substance was moved to Title VIII, Aliens
and Nationality, as part of the general restructuring under the Immigration Reform and
Control Act of 1986.
In the section on definitions, discussed above, it is stated: “(8)(A) Except as provided in
subparagraph (B), the term ‘migrant agricultural worker’ means an individual who is
employed in agricultural employment of a seasonal or other temporary nature, and who is
required to be absent overnight from his permanent place of residence. (B) The term
“migrant agricultural worker” does not include — (i) any immediate family member of an
agricultural employer or a farm labor contractor; or (ii) any temporary nonimmigrant alien
who is authorized to work in agricultural employment in the United States under sections
101(a)(15)(H)(ii) and 214(c) of the Immigration and Nationality Act.”
workers must be posted. Where housing is provided, the terms and conditions under
which such housing is made available shall be provided to the migrant worker.
Each “farm labor contractor, agricultural employer, and agricultural association”
who employs migrant workers shall keep specified records of his or her employment
— and shall provide a copy to the migrant. The basic information (terms and
conditions of employment) shall be provided in English “or, as necessary and
reasonable, in Spanish or other language common to migrant agricultural workers who
are not fluent or literate in English.”290 No company store arrangement is permissible.
Title III deals with seasonal agricultural worker protections.291 Each “farm
labor contractor, agricultural employer, and agricultural association” who recruits
seasonal agricultural workers shall ascertain “and, upon request, disclose in writing,”
the following: the place of employment, the wage rates to be paid, the crops and kinds
of activities on which the worker may be employed, the period of employment, and
the costs and terms of transportation. If there is a “strike or other concerted work
stoppage, slowdown, or interruption of operations,” such information shall be made
known. Any commission arrangement or day-haul operation shall also be made
known. The various protections shall be posted in a conspicuous place.
Records will be kept with respect to an individual worker and a copy will be
provided to such worker. Information to be provided will be in English or, as
reasonable, “in Spanish or other language common to seasonal agricultural workers
who are not fluent or literate in English.”292 Wages are to be paid “when due.” There
will be no company store arrangement.
Title IV deals with further protections for migrant and seasonal agricultural
workers. The title deals primarily with insurance.293 It begins by specifying the
type/mode of transportation in question.
This section does not apply [italics added] to the transportation of any migrant or
seasonal agricultural worker on a tractor, combine, harvester, picker, or other
similar machinery and equipment while such worker is actually engaged in the
DOL will make available the necessary linguistic forms.
In the section on definitions, it is stated, “(10)(A) Except as provided in subparagraph
(B), the term ‘seasonal agricultural worker’ means an individual who is employed in
agricultural employment of a seasonal or other temporary nature and is not required to be
absent overnight from his permanent place of residence — (i) when employed on a farm or
ranch performing field work related to planting, cultivating, or harvesting operations; or (ii)
when employed in canning, packing, ginning, seed conditioning or related research, or
processing operations, and transported, or caused to be transported, to or from the place of
employment by means of a day-haul operation. (B) The term ‘seasonal agricultural worker’
does not include — (i) any migrant agricultural worker; (ii) any immediate family member
of an agricultural employer or a farm labor contractor; or (iii) any temporary nonimmigrant
alien who is authorized to work in agricultural employment in the United States under
sections 101(a)(15)(H)(ii) and 214(c) of the Immigration and National Act.”
DOL will make available the necessary linguistic forms.
See discussion, below, under Adams Fruit.
planting, cultivating, or harvesting of any agricultural commodity or the care of
livestock or poultry.
However, where this section does apply (to normal and/or regular vehicle usage), the
“agricultural employer, agricultural association, and farm labor contractor” shall
“ensure that the vehicle does comply” with “Federal and State safety standards,” and
ensure that “each driver has a valid and appropriate license.” Such employer shall
have in effect “an insurance policy or a liability bond” that insures the employer
“against liability for damage to persons or property arising from the ownership,
operation, or the causing to be operated, of any vehicle used to transport any migrant
or seasonal agricultural worker.” The provision goes on to explain the various terms
and conditions under which insurance may be applicable.
How might the individual employer confirm that the individual farm labor
contractor has, indeed, complied with the terms of his or her craft?
No person shall utilize the services of any farm labor contractor to supply any
migrant or seasonal agricultural worker unless the person first takes reasonable
steps to determine that the farm labor contractor possesses a certificate of
registration which is valid and which authorizes the activity for which the
contractor is utilized. In making that determination, the person may rely upon
either possession of a certificate or registration, or confirmation of such
registration by the Department of Labor. The Secretary shall maintain a central
public registry of all persons issued a certificate of registration.
Title V, at the close of the act, provides for general provisions. These are
divided into three sections and, appear, in part, as follows.
Enforcement Provisions. Any person “who willfully and knowingly” violates the
act (or regulations under this act) shall be fined “not more than $1,000 or sentenced
to prison for a term not to exceed one year, or both.” However, any “subsequent
violation of this act (or regulation) carries with it, potentially, a fine of “not more than
$10,000” or a sentence of “not to exceed three years, or both.” A special provision
applies for farm labor contractors who violate section 106: the provision against the
employment “with knowledge” of aliens. Hearings are permitted and the rights of the
defendant are specified.
There is a private right of action. Any person “... may file suit in any district
court of the United States having jurisdiction of the parties ... without regard to the
citizenship of the parties and without regard to exhaustion of any alternative
administrative remedies provided herein.” Limitations on damages and equitable
relief are spelled out.
No person shall be discriminated against for having, “with just cause, filed any
complaint or instituted, or caused to be instituted, any proceeding under or related to
this Act....” Appeal can be made to the Secretary of Labor. Any waiver of rights
(except to the Secretary of Labor for enforcement purposes) “shall be void as contrary
to public policy....”
Administrative Provisions. The Secretary of Labor “may issue such rules and
regulations as are necessary to carry out this Act,” consistent with the U.S. Code.
As may be appropriate, the Secretary may “investigate, and in connection
wherewith, enter and inspect such places (including housing and vehicles) and such
records (and make transcriptions thereof), question such persons and gather such
information to determine compliance with this Act....” The Secretary “may issue
subpoenas requiring the attendance and testimony of witnesses or the production of
any evidence in connection with such investigations.”
The Secretary may “enter into agreements with Federal and State agencies” in
carrying out the program under MSPA.
Miscellaneous Provisions. “This Act is intended to supplement State law, and
compliance with this Act shall not excuse any person from compliance with
appropriate state law and regulation.”
Adams Fruit Co., Inc. v. Barrett
Perhaps only a consensus bill (such as that creating MSPA) could have been
enacted under the circumstances. Yet, that would not end complaints, both pro and
con. Migrant farmworkers, observed Representative Mickey Leland (D-TX) in 1985,
just two years after MSPA was adopted, “are among the most vulnerable workers in
our Nation.” The conditions under which they live and work has resulted in “... an
infant mortality rate that is two and one-half times the national average.”294 During
the late 1980s, several Members protested about the alleged tendency of some Legal
Services offices “to represent, or, I suggest, misrepresent, some of these migrant
workers” in bringing complaints against farmers.295 And, in 1993, Representative
Miller argued that “Working and living conditions for migrant agricultural workers
remain deplorable and in some cases have deteriorated” — and he introduced a
comprehensive revision of MSPA.296 The most serious complaint (one that would
result in amendment of MSPA) grew out of the Adams Fruit case.297
A Ruling from the Court. In 1990, the U.S. Supreme Court ruled in Adams
Fruit Co. v. Barrett that migrant farmworkers, employed by Adams Fruit Company,
Inc., having “suffered severe injuries in an automobile accident” in an Adams Fruit
van while traveling to work, had two options available for redress. They could file a
claim under the Florida workmen’s compensation law and they could avail themselves
under the private right of action provision of MSPA.298
At issue before the Court was the question of exclusivity (or dual coverage)
under the state and federal acts: i.e., worker’s compensation and MSPA. The Court
Congressional Record, September 1985, p. 22927.
Congressional Record, September 30, 1986, pp. 27399-27401, March 6, 1987, pp. 50485049, and July 17, 1989, p. 14919.
Congressional Record, March 2, 1993, pp. 3953 and 3937. See also H.R. 1173 of the
Congressional Record, October 27, 1990, p. 37188.
494 U.S. 638, 640 (1989).
ruled that although Congress “may choose to establish state remedies as adequate
alternatives to federal relief, it cannot be assumed that private federal rights of action
are conditioned on the unavailability of state remedies absent some indication to that
In the view of the Court, no such alternative remedy was apparent. Adams Fruit
argued that “in the absence of any explicit congressional statement regarding the
preemptive scope” of MSPA, the Court should defer to the Department’s position: i.e.,
a single remedy. The Court, however, rejected that view. It found that a “‘gap’ is not
created in a statutory scheme merely because a statute does not restate the truism that
States may not pre-empt federal law.”300 In summary, the Court held, “[o]ur review
of the language and structure of AWPA [MSPA] leads us to conclude that AWPA
does not establish workers’ compensation benefits as an exclusive remedy....”301
Hearings on Workmen’s Compensation. Representative Goodling
branded the decision as “bad for employers” and “bad for workers” — allowing the
worker “the ability to both recover workers’ compensation and sue for compensatory
and punitive damages.” Goodling asserted: “As one who worked many long and hard
hours in 1981 and 1982 to achieve the MSAWPA [MSPA] consensus[,] I intend to
preserve it by pressing for early action next year ... to overturn the Adams Fruit
On September 15, 1993, Representative Austin Murphy (D-PA) called together
at Fresno, California, a hearing by the Labor Standards Subcommittee. Two bills
were on the table: H.R. 1173 (Miller) and H.R. 1999 by Victor Fazio (D-CA). The
Miller bill was a comprehensive measure which, among other provisions, would have
codified the Adams Fruit decision. The Fazio bill had for its sole purpose the
overturning of that decision.303 They had evolved, though from different perspectives,
through “many months of unsuccessful negotiations aimed at producing consensus
legislation to resolve the difficulties and concerns voiced by farmworker advocates
494 U.S. 638, 639 (1989).
494 U.S. 638, 649 (1989).
494 U.S. 638, 650 (1989).
Congressional Record, October 27, 1990, p. 37188. At the close of the 102nd Congress,
an amendment was added to the Legislative Branch Appropriations Act (H.R. 5427),
suspending for a brief period the impact of the Adams Fruit decision. See Congressional
Record, October 3, 1992, p. 31243, and October 5, 1992, p. 31598.
See also S. 1450 (Feinstein) to overturn Adams Fruit. None of the bills was enacted.
U.S. Congress, House, Subcommittee on Labor Standards, Occupational Health and
Safety, Committee on Education and Labor, Hearing on H.R. 1173 and H.R. 1999.
September 15, 1993, p. 1. (Cited hereafter as Hearings, House, 1993.) See also for general
reaction to the MSPA, U.S. Congress, Subcommittee on Labor Standards, Committee on
Education and Labor, Oversight Hearings on the Migrant and Seasonal Agricultural Worker
Protection Act, July 13, 1987. The 1987 hearing was conducted in Biglerville, Pa.
As the Fresno hearings opened, several Members of Congress spoke. Richard
Lehman (D-CA) and Calvin Dooley (D-CA) commenced with opposition to any new
restrictions upon agricultural interests. They were followed by Howard Berman (DCA) and by Miller, generally supportive of worker interests. The several Members
emphasized the dichotomy existing over the prospective legislation. They were
followed by representatives of organized labor, civil rights attorneys, and
spokespersons for industry.305
On May 25, 1995, with a change in control in the House, Goodling became chair
of the full Committee on Economic and Educational Opportunities. Cass Ballenger
(R-NC) now chaired the Subcommittee on Workforce Protections with jurisdiction
over agricultural labor. New hearings addressed the issues similarly. The Court,
Ballenger stated, had interpreted MSPA “to provide for a private right of action for
certain job related injuries, even if the individual was covered by workers’
compensation at the time of the injury” leaving employers “exposed to potentially
enormous liability for damages in spite of the fact that they have contributed into the
workers’ compensation system.”306 Conversely, Representative Major Owens (D-NY)
suggested that “Instead of insuring work place protections, this committee is
preoccupied with eliminating all inconveniences for the rich and privileged, at the
expense of the working poor....”307
Bruce Wood, Senior Counsel for the American Insurance Association, argued
that the Court’s opinion was “not grounded on public policy” and that the Court had
acted “narrowly and mechanically.”308 The “doctrine of exclusivity” was emphasized
by Walter Kates, an industry representative. MSPA was “a consensus bill,” he
declared, with all parties in agreement that “the doctrine of workers’ compensation
exclusivity was a part” of the bill. The failure “to reverse the Adams Fruit decision,”
Kates stated, “could have adverse and unintentional consequences for both the farmer
and the farmworker.”309 Steve Kenfield, a farm labor contractor from California,
suggested that Adams Fruit “has complicated an already complex compliance
situation.” It “created frustration” in that payment of premiums for workers’
compensation (mandatory in California) “is virtually meaningless.” And, it suggested
that “we could also face open-ended” liability. With others from industry, Kenfield
called upon Congress to “reverse” the Adams Fruit decision.310 Finally, David
Moody, a former farmworker and the victim of an accident in Florida, testified about
Hearings, House, 1993, p. 48.
U.S. Congress, House, Subcommittee on Workforce Protections, Committee on
Economic and Educational Opportunities,. Hearings on Adams Fruit Co., Inc. V. Barrett.
May 25, 1995, pp. 1-2. (Cited hereafter as Hearings, House, 1995.)
Hearings, House, 1995, p. 2.
Hearings, House, 1995, p. 5.
Hearings, House, 1995, pp. 12-14. Kates is identified as representing the National
Council of Agricultural Employers (as chairman of their Migrant and Seasonal Agricultural
Worker Protection Act Committee), the Florida Fruit and Vegetable Association (as director
of their Labor Relations Division), and the Workers’ Compensatory Integrity, Stability, and
Hearings, House, 1995, pp. 16-19.
the problems and complexities of securing redress solely under the worker’s
The Goodling Bill (1995). On May 25, 1995, Representative Goodling
introduced H.R. 1715, a bill dealing with workers’ compensation benefits and MSPA.
The bill was referred to the Committee on Economic and Educational Opportunities
and passed.312 Through the summer, discussions were conducted informally on the
legislation and, in mid-October, Goodling was able to announce that a substitute
would be offered for H.R. 1715 (with the same designation) that would carry with it
the endorsement of Representatives Ballenger, Owens and William Clay (D-MO). 313
The substitute version of H.R. 1715 provided that “where a State workers’
compensation law is applicable and coverage is provided ... the workers’
compensation benefits shall be the exclusive remedy for loss of such worker under this
Act in the case of bodily injury or death....” In effect, Adams Fruit was overturned.
The bill went on to discuss the expansion of statutory damages, the tolling of the
statute of limitations under state workmen’s compensation laws, disclosure of
coverage (and processes) to the workers involved, and other matters. Mr. Goodling
explained that H.R. 1715 “clarifies the relationship between workers compensation
benefits and the private right of action” available under MSPA.314
Mr. Owens rose in support of the bill and expressed his appreciation to
Representatives Goodling, Clay, and Ballenger — and to others: Representatives
Miller, Berman and Fazio. “The efforts of all three gentlemen have been instrumental
in the development of the amendment before us” — which he regarded as a
“compromise.”315 Mr. Fazio argued that the bill “... is the result of 5 years of
discussions, but it is a bill that needed to be enacted....”316
At this juncture, the House suspended the rules and passed the compromise
version of H.R. 1715.317 The bill was promptly dispatched to the Senate where, under
unanimous consent, it was adopted.318 On November 15, 1995, the measure was
signed into law (P.L. 104-49) by President William Clinton.
Hearings, House, 1995, pp. 21-22.
Congressional Record, May 25, 1995, pp. 14444 and 14641.
Congressional Record, October 13, 1995, pp. 28027-28028. On October 17, 1995, p.
28126, Mr. Goodling explained that the original bill had been reported from the Committee
on Economic and Educational Opportunities but, after several weeks of negotiations, he was
now able to offer a consensus bill.
Congressional Record, October 17, 1995, pp. 28125-28127.
Congressional Record, October 17, 1995, p. 28127.
Congressional Record, October 17, 1995, p. 28128.
Congressional Record, October 17, 1995, p. 28129.
Congressional Record, October 31, 1995, p. 30907.
Part V: Agricultural Workers in the New Century
For the most part, since the 1983 amendments (with the emergence of the
Migrant and Seasonal Agricultural Workers Protection Act), the statute has remained
largely unchanged, with the exception of the Adams Fruit legislation.319
The history of FLCRA (and, now, MSPA) has been long and tedious. For almost
ten years (1964 to 1974), legislation remained in place but was, largely, unenforced
— or, perhaps, unenforceable. Revised in 1974, there were serious attempts to
enforce the statute but these seem to have required that many of the wrong people
register (i.e., fixed site farmers, growers, and a variety of other agricultural interests)
and, generally to comply with the act’s restrictions. In 1983, FLCRA was repealed,
and Congress started over with a new statute: the Migrant and Seasonal Agricultural
Worker’s Protection Act. The latter remains in place.
Debate over FLCRA and, to a lesser extent, MSPA, seems to have been
exhausting. It could well be that some may now be disinclined to revisit the statute
and to raise new questions. However, the need for oversight would seem to remain a
priority where agricultural policy is concerned.
Thus far, in the 110th Congress, no new legislation to amend MSPA has been
See U.S. Congress. House. Subcommittee on Workforce Protections, Committee on
Education and the Workforce. Field Hearing on Issues Relating to Migrant and Seasonal
Agricultural Workers and Their Employers (Newland, N.C.), 105th Cong., 1st Sess.,
September 12, 1997, 164 pp.; and U.S. Congress. House. Subcommittee on Workforce
Protections, Committee on Education and the Workforce. 105th Cong., 2nd Sess., The Effect
of the Fair Labor Standards Act on Amish Families and H.R. 2028, The MSPA Clarification
Act. April 21, 1998, 167 pp.