Serial No. 106-78


Printed for the use of the Committee on Education

and the Workforce

Table of Contents *



















U.S. House of Representatives

Subcommittee on Workforce Protections

Committee on Education and the Workforce

Washington, D.C.

The subcommittee met, pursuant to call, at 2:00 p.m. in Room 2175, Rayburn House Office Building, Hon. Cass Ballenger [Chairman of the Subcommittee] presiding.

Present: Representatives Barrett, Owens, Martinez, and Woolsey.

Staff Present: Molly M. Salmi, Professional Staff Member; Mark Rodgers, Workforce Policy Coordinator; Deborah Samantar, Office Manager/Intern Coordinator; Heather Oellermann, Staff Assistant; Michele Varnhagen, Labor Counsel/Coordinator; Peter Rutledge, Senior Legislative Associate/Labor; Maria Cuprill, Legislative Associate/Labor; Marjan Ghafourpour, Staff Assistant/Labor.



Chairman Ballenger. Thank you for agreeing to participate in the hearing. We appreciate your willingness to testify and look forward to your statements.

I'd also like to welcome our colleagues who will be testifying. Congressman Charles Canady, the sponsor of H.R. 1886, Congressman Doc Hastings, the sponsor of H.R. 2757, and Congressman George Radanovich, the sponsor of H.R. 3121.

Today's hearings will focus on H.R. 1886, the MSPA Clarification Act, H.R. 2757, Housing Opportunities for Migrant Employees, and H.R. 3121, which deals with the issues relating to the transportation of farm workers. These bills would make changes

to the Migrant and Seasonal Agricultural Worker Protection Act, otherwise known as MSPA, to clarify the Act and improve its administration.




MSPA was enacted with bipartisan support over 15 years ago and, while the Act has been very important in helping improve the conditions of employment for farm workers, there are nonetheless problems which stem from the Department of Labor's enforcement and the interpretation of the Act. In some cases, it would appear that the Department of Labor has stretched the original intent of the Act through new interpretations and new regulations.

There are three issues that our witnesses will discuss today. First, we will review the issue of housing for migrant farm workers, specifically, the problem of duplicative inspections by various enforcement agencies with jurisdictions over housing. In some states, there are several different agencies with jurisdiction. This can lead to unnecessary and time-consuming inspections and confusing requirements. At times, growers are fined for circumstances that are caused by the residents of the housing and are beyond the grower's control. H.R. 2757, introduced by Congressman Hastings, would resolve some of these issues.

Second, we'll review the issues relating to the transportation of migrant farm workers. One problem stems from the Department of Labor's interpretation of what constitutes carpooling. Farm workers frequently have informal arrangements for carpooling, which involve compensating the driver. A driver whose compensation exceeds the actual transportation costs could be considered by the Department to be a farm labor contractor and, if the driver is not registered as such, then the Department could cite the farmer for failing to ensure that the driver is appropriately registered. Congressman Radanovich has legislation which would clear up this issue.

Third, we'll review the issue of joint employment. This has become a problem because of the Department of Labor's overly broad interpretation of the joint employer rule in MSPA. It is increasingly difficult for growers to avoid joint liability for MSPA violations when they use the services of farm labor contractor. Congressman Canady's bill would address the issue of joint employment as well as several other issues under MSPA.

In all three of these areas, the Department's interpretation and enforcement of MSPA has a negative impact on both farm workers and agricultural employees. MSPA should aid employers in providing safe and healthy work environment without imposing unrealistic and costly burdens. We should be able to find ways to minimize or eliminate, overlapping and remove obstacles to the workers' compliance.

We're not talking about eliminating or reducing important protection for workers. Rather, we're looking at solutions of problems affecting agricultural community, focusing on those that will be mutually beneficial to employers and farm workers alike.

We'll recognize Mr. Owens when he comes, and we'll allow his opening statement at that time.





Now I'd like to introduce our panel of witnesses. First, Charles Canady, Member of Congress from the 12th District of Florida; second, Doc Hastings, Member of

Congress from the 4th District of Washington; and I hope eventually George Radanovich, a Member of Congress from the 19th District in California.

Let me remind the witnesses, under our committee rules, they must limit their oral statement to five minutes, but their entire written statements will appear in the record. We'll also allow the entire panel to testify before the questioning the witnesses.

With that said, Mr. Canady, you may begin your testimony.






Mr. Canady. Thank you, Mr. Chairman.

I want to express my gratitude to you for calling this hearing today and for your leadership in focusing attention on these issues. I also want to thank my colleagues; Congressman Hastings and Congressman Radanovich, for the work that they have done to craft legislation to correct some of the problems that exist in the current implementation of the law.


Mr. Chairman, I think you did an outstanding job of giving an overview of the problems that we are seeking to address. A fundamental point, I think, that everyone needs to understand is that we are not talking about undermining the effectiveness of MSPA. I can't speak for other members, but I will say for myself that I believe that this statutory measure at the federal level was necessary and remains necessary.

I believe that there have been significant abuses of farm workers, and some abuses go on to this day, and I don't think anyone should have any illusions about that, and we need to have protections in place to ensure that there are safe working conditions and that people are paid for the work that they do and that they are not subjected to unfair and harmful practices. So I would hope that we would have broad agreement on that, and I believe that we do have broad agreement on those basic principles.

What motivated my legislation was a concern that the law as it is being implemented is simply not being implemented in a way that is fair, that is consistent with the original Congressional intention. I introduced the legislation to attempt to address some of the flaws that I learned about in the implementation of the law. As you touched



on in your statement, one of the problems that we're seeking to address is the decision in 1997 of the Department of Labor to come forth with a new interpretation of the Joint Employer Rule found in MSPA.

The Department came forward with a regulation that is written so broadly that virtually any farmer can be classified as a joint employer for liability purposes. This is a regulation that subjects people in the agricultural sector, farmers, to worse treatment than

any other employer anywhere else in the economy receives. And it is simply an effort to find someone to hold liable, regardless of whether there is actual responsibility.

That's what has concerned me about that particular aspect of this and, of course, the regulation that the Department has come forward with is based on an interpretation that was struck down by the courts in several court decisions. I believe that this is an area in particular that we need to focus attention on and that we need to address legislatively.

Again, as you mentioned, my legislation would address a number of other issues related to MSPA in addition to restoring the original definition of joint employer under the law. It would clarify that farm workers who enter into voluntary carpool arrangements would not be classified by the Department of Labor as licensed farm contractors in violation of MSPA. It would grant farmers a 10-day grace period in which they may cure MSPA violations. And I think that's an area we need to work on.

We need to be focusing on the implementation of this law on the people who are intentionally doing harm or who are reckless in causing harm. We don't need to focus on people who may have some paperwork violation or some technical violation of the law who are engaged in good faith efforts to comply. Our resources should not be focused on driving them into the ground. We should focus on the real bad actors in this system, and that's just a matter of common sense. If we're concerned about protecting farm workers, we're going to use our resources in that way.

The legislation I've introduced would also streamline worker-housing regulations and require federal investigators to confer with growers prior to entering a farm operation. There are other provisions that I could elaborate on. However, I won't. In the following panel, we're going to have experts who will testify to the specific provisions.

But again, I want to emphasize the point that I started out with and that is this bill does not weaken or do away with the fundamental protections afforded to migrant workers under MSPA. It merely seeks to provide for a reasonable relationship between growers and the government by restoring the original intent of Congress under MSPA. It's a bill that has bipartisan support.

I'm very pleased that today on a subsequent panel, the subcommittee will hear the testimony of Mr. Walter Kates of the Florida Fruit and Vegetable Association, who's testifying on behalf of the National Association of Agricultural Employers. Mr. Kates is a distinguished representative of the agricultural community who has worked nationally for many years with growers, labor groups, and the government on farm labor issues. He will, as I mentioned, discuss in greater detail the provisions of the legislation that I've introduced.

Again, Mr. Chairman, I thank you for this opportunity and I look forward to working with the members of the subcommittee on these important issues.


Chairman Ballenger. Thank you, Mr. Canady.

Mr. Hastings, you may give your testimony.




Mr. Hastings. Mr. Chairman, thank you very much.

I, too, want to thank you for the leadership that you've taken on this issue and thank you for holding this hearing and for my opportunity to discuss H.R. 2757, which I have introduced primarily to eliminate duplicative federal regulations regarding migrant housing.

Many of the people that I represent rely heavily on migrant workers for harvesting of their crops. For example, nearly 16,000 migrant workers travel to Washington State every year to take part in the annual cherry and apple harvests, which are just now concluding in my state, or at least the apple harvests are. Since my district is rural and the average harvest lasts less than three weeks, there obviously is a shortage of affordable housing for migrant workers.

Faced with no other alternatives, therefore, numerous migrant workers have been forced to sleep in their cars or camp along riverbanks or in state parks or even sometimes national parks, but in every case, those are unhealthy living conditions. And although not required by law, many employers have sought to improve the living conditions of their workers because a lot of these workers come back on a yearly basis to the same farms. They do so by constructing temporary housing on their property.

Unfortunately, growers who construct facilities and increase the quality of life of their workers must then comply, and they're doing this voluntarily, I might add, but they must comply with the tangled web of regulations.

Currently in Washington State four agencies, two state and two federal, exercise regulatory authority over migrant worker housing. The Washington State Department of Labor and Industries and the Washington State Department of Health on the state level. On the federal level, we have OSHA and we have Department of Labor's Wage and Hour Division.

The layering of these agencies with jurisdiction over farm worker issues has become an impediment rather than a solution to the migrant worker housing. For



example, this past year after many years of work, the state developed a pilot program mandating basic necessities and amenities on farms for the migrant workers, such as cooking facilities, lights, toilets, running water and electricity.

The interesting point about this is that the state believes that they are constructing a pilot plan that would warrant OSHA approval. They did that, as a matter of fact, because the chief of staff of the governor of our state used to be the head of OSHA, here in Washington, D.C., so when they were going through this, with the governor's support, they thought that obviously they'd be complying with OSHA's regulations.

However, just days before the harvest, OSHA refused to approve this state's reasonable plan causing, therefore, farmers to close down their housing facilities to avoid fines that would have come afterwards - obviously, which could have then maybe bankrupt some of those farms. This then forced the migrant workers back to state parks, riverbanks, and so forth to go through the harvest season. The idea of OSHA coming and saying to do it my way or no way, to me, was totally indefensible.

As the state continues to identify methods of consolidating these regulations and improving housing, because this will be an ongoing process, the federal government needs to do its part to allow for incremental improvements in the living conditions and decrease the redundant standards that contribute to the housing shortage.

My legislation would remove one of the layers of regulations without compromising anything regarding the quality of migrant housing. H.R. 2757 would exempt farm worker housing from the federal Migrant and Seasonal Worker Protection Act or MSPA if the housing is already regulated by other federal and/or state housing regulations, which is the case in Washington State. Streamlining the regulations would make it easier for employers to provide quality seasonal housing which would dramatically improve the living conditions of migrant workers and their families.

The bill would also exempt growers from MSPA violations that were caused by the conduct of migrant workers living in the grower-provided housing. This would protect employers from being fined for circumstances beyond their control, such as workers' failure to keep the dwelling clean or letting garbage accumulate. It is unfair to unduly punish employers for housing situations that would be required otherwise.

Mr. Chairman, these workers are being harmed by the very regulations that were put in place to protect them. By overlapping regulations and giving too many agencies jurisdictions over migrant worker housing, housing standards have been created that are not only difficult to interpret but nearly impossible for growers to meet all at once. It's time for us to strip away at least one of these layers and allow these issues to be addressed where I think they can be better addressed, and that's on the state/local level.

My legislation is supported by a number of organizations who will testify on its behalf later on. Mr. Chairman, once again, I appreciate the opportunity to testify in front of you, and I appreciate the work that you've done on this, and I will look forward to working with you, hopefully to pass some legislation before next year's harvest.

Thank you very much, Mr. Chairman.


Chairman Ballenger. Thank you, Mr. Hastings.

Mr. Radanovich, sorry we started without you, but we know we're going to be on a tight schedule when the votes come up on the floor.





Mr. Radanovich. That's okay, Mr. Chairman. I appreciate the opportunity to come before this Committee and speak about the bill that I've offered, which is H.R. 3121. I'm here to talk about this bill and the way it makes corrections in the transportation portion of the Migrant and Seasonal Worker Protection Act. My legislation makes minor common sense changes to MSPA that are needed to allow the Act to protect workers as it was intended.

The area that I represent is the Central Valley of California, which is home to the two largest agricultural producing counties in the nation and grows over half the nation's fresh fruit and vegetables. Agriculture is vital to the success of the economy in the Central Valley region and farmers and farm workers play lead roles in this economy.

Unfortunately, both groups are being harmed under certain provisions within MSPA, which was intended to provide workers with information on wage, housing, transportation, and other employment protections. One of the problems that must be corrected is the Department of Labor decision to treat carpools as an involuntary activity and subject to MSPA. As a result, a farm worker is designated as a farm labor contractor, if in a carpool arrangement, the driver accepts money from passengers.

A farmer in my district was initially fined over $5,000 by the Department of Labor when one of her employees, unbeknownst to her, organized a carpool. The Department of Labor classified the worker as a farm labor contractor and enforced fines upon the farmer. Such enforcement of MSPA is absurd. An individual must be allowed to coordinate a carpool without liability being placed on the employer who is unaware of the carpool arrangement.

My bill gives employees the ability to organize carpools and exempt employers from liability when they do not know of a carpool arrangement. Individuals in other employment sectors operate under such laws and agriculture should not be held to a different standard.

Along these lines, when the Department of Labor makes decisions on joint employment liabilities, the agriculture industry must be placed on a level playing field with other industries. My legislation provides that agriculture employers do not have joint responsibility if carpooling is required by law.

The final issue the bill addresses is insurance rates for the transportation of agricultural workers. Congress has twice instructed the Department of Labor to set logical transportation insurance rates and both times Congress's instruction was not followed. The exorbitant rates set by the Department of Labor discourage employers

from buying any insurance and, thus, providing transportation. So the employees are left

to transport themselves. This creates dangerous conditions for the workers and others on the road.

States under my bill are given the responsibility for defining transportation insurance rates. Such actions would give farmers the ability to purchase insurance and increase the safety of transportation for workers.

In closing, I believe that you'll find H.R. 3121 to be a reasonable, narrowly tailored piece of legislation to correct transportation concerns within MSPA. Farm workers and farmers will greatly benefit from the insurance fix, and growers will be able to afford insurance to provide workers with transportation.

Mr. Chairman, thank you for your consideration of my bill today, and I appreciate your time and look forward to working with you on this matter.


Chairman Ballenger. Thank you.

You know, just off the top of my head, I was wondering. I know CAL OSHA is a state run OSHA. Is Oregon also? Florida?

Mr. Hastings. Washington and Oregon.

Chairman Ballenger. Florida is not. Sometimes, at least in North Carolina, which is also a state run OSHA program, we find it a little bit more convenient than having the federal government in charge because all you had to do was call the state capital and talk to somebody that you might know.

As you were talking, here we've got Florida, Washington, California, and North Carolina. As Congressman Canady knows, the biggest agricultural crop in the western part of North Carolina in the mountains are Christmas trees, and I have exactly the same problems that you all just have brought up and I wonder if there's a state in the Union that doesn't have this problem. I don't know about anybody else, but our unemployment rate in North Carolina is four percent and we need workers. We have to take care of them and we do.

Then every once in a while, as I say, one of the things that got me was that we had a dormitory. I went up and visited their dormitory. This was H-2A. North Carolina is a leader in H-2A people from Mexico. And somehow they didn't wash their dishes before they went to work, and the Labor Department came in and found the dirty dishes in the sink and the employer got fined $5,000 for sloppy housekeeping.




In North Carolina, we can't grow fruits and vegetables when you all can. It just

doesn't work. So everybody should be working for the betterment of the community, the country, because just about every state that I can think of has some sort of farm product that is regulated, either by their local OSHA or by their Labor Department or somebody.

I would just like to ask Congressman Hastings. You tried to work something out with the State of Washington and yet it seems that the federal laws are actually impeding the ability for you to work something out at the state level.

Mr. Hastings. Thank you, Mr. Chairman. As a matter of fact, I mentioned just briefly in my testimony that the legislation that was passed last year and was trying to be implemented by the state was a product going over many years. I was in the Washington legislature 20 years ago and remember this issue was being worked on at that time, farm worker housing. It actually got started in the mid '60s when there was a study to come up to look at farm worker housing and would there be any solutions for it.

So essentially, I guess in the near past, this has been going on for some 30 years as to what the solutions are. And again looking at my district, you talk about the various crops that are around. I dare say probably in our state, we have as much diversity of crops as any place in the country, because we have migrant workers that start in the spring with the pruning process of our tree fruit and then we have hops, which is labor intensive when you start the year with hops.

Then we have asparagus. Washington is one of the leading states in asparagus. Then you have cherries and then you have the tree fruit. And so it's pretty diverse, and not all farmers are as diversified that have all those crops.

And so you have to have some sort of flexibility, and this is what our farmers and legislature with the governor has been working on for all this time. They got right down essentially to the point where they had agreed to a plan. This was very, very hard getting agreement on this. But it was a bipartisan agreement. We had the governor, who's a Democrat, that signed the bill. We had a Democrat state senator from Seattle who used to be a migrant worker who supported this effort. We had people from eastern Washington, which is my part, that were active in agriculture. In fact, some farmers worked on this.

So there was a tenuous balance, and they are ready to implement this plan and all of the sudden OSHA came in and said, you can't do it. Now, to me, my legislation addresses what I think was indefensible on their part, because of all the work that was done with those people that were doing the work and that understood what the problems were. My legislation essentially tries to get some relief in that regard and respect the work of the people that have been working on this on a local level for all these years.

So the answer to your question is yes. There has been a lot of work and a lot of discussion on this in my state, simply because of the diversity of the crops that we have.

Chairman Ballenger. And that was a state run OSHA plan that stepped in.

Mr. Hastings. Well, this is one of the ironies again that I mentioned because the chief of staff of our governor, like I say, Joe Dear used to head OSHA before he went back home, and I really think that they were working and they assumed I couldn't get this obviously for sure, but I think they assumed that they were complying with everything that OSHA would require. In fact, WSHA, which is our state run plan, in many respects is much more strict than what OSHA is, and so I think when they were going down this, they figured that they were going to be in compliance. Well, all of the sudden, it didn't work that way. At any rate, that's the reason for my legislation, to put common sense back into this.

Chairman Ballenger. How many votes have we got? Marty, you want to go ahead and ask some questions? We're going to be gone for a half-hour. Would you like to ask?

Mr. Martinez. Yes. I'd just like to ask Mr. Hastings. Even in your state agreement, the Washington agreement, it was not required that you provide housing. Right? It was only if they provide housing, they have to meet a certain standard of quality.

Mr. Hastings. Right.

Mr. Martinez. What percentage of the farmers there and the ranchers or whatever they are do provide housing?

Mr. Hastings. I can't answer that. I think one of the gentlemen that'll be testifying after me from the Washington Growers could probably give you some information on that. I don't have that right off the top of my head.

Mr. Gempler. Just over 200 licensed farmhouses, probably three to four thousand farms.

Mr. Hastings. About five percent.

Mr. Martinez. So we're really concerned about five percent of the farmers that are only required to provide adequate housing. Right? It's not a Taj Mahal. They're not asking to put them up in the Marriott or anything like that.

Mr. Hastings. Nothing like that. And they're not required at all but keep in mind; some of these orchardists have 40 acres or smaller orchards.

Mr. Martinez. Yes, there was a part of that agreement, too, that provided for more monies to go for better housing. Right? Evidently, they didn't think the housing was good enough. But I understand that was never implemented. Right?

Mr. Hastings. Well, again, you're talking about the Washington State law?

Mr. Martinez. Yes.

Mr. Hastings. I'm not familiar with all the details. Again, Mr. Gempler, who will be testifying later on, worked on that. He was one of those and he can give you the details. I can't give you the details. The message that I'm trying to project here is that I think we need to respect the work of those that are closer to the problem in trying to arrive at a solution. To me, that is the important principle here.

Mr. Martinez. I might tend to agree with you on that, that at a local level you got to work out whatever problems there are. The only trouble is that sometimes standards have to be set.

I visited a lot of the farms in Northern California, especially pear farms where they did provide housing and, until the labor law in California did something about it, that housing was totally inadequate. It was surprising to some of the farmers up there, the pear farmers, that it didn't really cost them that much more to provide adequate housing. They found that the people were happier.

Now I'd hate to go back to the day when I was a kid growing up in East L.A. All the families around East L.A., in order to make more money because it was the depression and things were pretty tough, would be asked to go out during the summer months to what we called the piscas. Mostly our family picked walnuts and that's a messy, dirty job. But the family as a whole would work and earn money.

But the point is that we had to provide our own housing out there. The farmer didn't provide any housing. We lived in tents without running water or anything else. I mean as cave-like as you could imagine. In fact, I don't know that we ever took a bath while we were out there. Come back stinky with all this walnut grease all over you. And I wouldn't like to see conditions like that. I don't think you would either.

Mr. Hastings. No. No.

Mr. Martinez. So there's got to be some standard somewhere and what do you provide for them? The H-2A Program does have standards, stricter than what the Washington standards are. The thing with that is though that under the provisions of that law, if the employee complains about anything, the farmer can have him deported and he can never be allowed to come back into the country and work in that program. So there's a little kind of, I think, too much on the part of the rancher. But there's got to be some balance.

I mean, you mentioned a minute about being fair and deciding things on a local level. Sure, but we ought to be careful on reducing standards beyond a point where they are not fair any more to the worker. As it is, these workers don't make a lot of money. They don't make a lot of money, and they struggle to make a living, and so they ought to be given some consideration, at least in that housing. And what I saw, like I say, in Northern California, wasn't adequate housing. I think here for five percent of the people

that are providing that housing, I think we're trying to put something in place to take care

of five percent but it really doesn't affect the 95 percent. To me, that doesn't sound reasonable.

Mr. Hastings. I just want to make another point. We are waiving only the federal jurisdiction under MSPA. OSHA still applies. We're not doing it where we're driving all the decision making back to the states. But again, I can speak for our state when I say that WSHA is, in many respects, much stricter than what the federal OSHA rules are.

But in this case, what happened this year, even those growers that were providing housing, because they had a work force, a lot of them do come back to the same farms every year, they had to say, I'm sorry, you can't do it. You can not do it at all this year. Now that to me is going to the extreme the other way. That doesn't make absolutely any sense whatsoever. And again, all the work, the first migrant worker laws that were

enacted in Washington State goes way back to 1913. So this is not something that has just come up here in the last. It's been worked on for a long period of time.

Chairman Ballenger. Congressman Radanovich, did you want to say something?

Mr. Radanovich. Thank you. Yes, just on that one note. There are stories of extremes on both sides. I have a story of a good friend who's a farmer in San Joaquin Valley, Dan Growan, who provided very good housing, good solid housing for his employees. Finally was badgered so much by Legal Services Corporation in these lawsuits regarding the dishes being undone, maybe one day or some minor things like that, that he got a bulldozer and just tore out all his housing and decided not to do it.

So, I would love to work together, especially in California, to come to some common ground there so that we can get a good labor supply that will do the jobs that Americans won't do any more and still provide the nation with these fresh fruits and vegetables.

Chairman Ballenger. Thank you all for coming. You have got to do the same thing we've got to do, which is to go vote. I don't know how many votes we have. I know we've got at least one plus final, so that's two. It may take us pretty close to half-hour. So if you want to take a break and find some food or a Coca-Cola or something like that, go right ahead and we'll be back.


Chairman Ballenger. Again, if I may apologize to you all. This place is normally not very well organized, but this late in the season it's completely disorganized, and I apologize for keeping you all waiting.

Congressman Owens is now with us, and he had a commitment on the floor so he never got to make his opening statement. So, Mr. Owens you may proceed.



Mr. Owens. Thank you, Mr. Chairman.

This is a legislative hearing on two bills, which are pending before Congress, but the real subjects of this hearing are the people who work in the fields and orchards to harvest the food we eat. This hearing is about people who make less than $8,000 a year. They live in squalor and they die on the road to work because the vehicles they're transported in are often unsafe death traps. Farm workers have been among the most exploited workers in our society.




While the Migrant and Seasonal Agricultural Workers Protection Act has brought significant improvements, these remain among the hardest, lowest paying jobs in the country. Too many farm workers remain victims of gross exploitation and abuse.

On September 7 a Florida farm labor contractor was sentenced to 33 months in prison for enslaving 27 farm workers. The workers were housed in squalid trailers and could not leave until they paid off the debts the crew leader claimed they owed. The workers were transported in a van owned by the crew leader but were told to claim that it was their van and that they were carpooling.

This summer nearly $60,000 in unpaid wages were recovered for workers in the melon fields in Texas, in part because of the joint employee standard in the AWPA. Peonage, which once was a hallmark of the migrant and seasonal agricultural industry, is now uncommon, but it is by no means unheard of. Sub-minimum wages, unfit housing and unsafe transportation remain major problems in the industry.

In August 13 farm workers were killed in California when an illegal contractor driving an uninspected van blew a tire. The typical farm worker is unemployed, working only 25 weeks a year and impoverished, earning less than $10,000 a year. Overall conditions of employment of farm workers in the United States remains more abysmal

than those in any other occupation. To contend that farm workers are overly protected by the law is to ignore these basic facts.

As I have said before, I'm willing to work with Mr. Canady and Mr. Hastings and any other member to better ensure that farm workers are paid the wages they are owed, are decently housed, and are safely transported. If there are ways to ease grower obligations under the law without diminishing the law's protections, I will support them also.

However, I strongly disagree with Mr. Canady regarding the merits of H.R. 1886. The heart of the present law are those provisions establishing joint employee status between growers and farm labor contractors. I am particularly concerned that H.R. 1886 returns us to the discredited and unworkable policy of seeking to protect farm workers through the regulation of farm labor contractors. Growers must be held accountable for the conditions of labor for which they are responsible. The alternative is to return to a system that encourages growers to employ disreputable contractors and invites the violent exploitation of workers.

H.R. 1886 seriously and significantly undermines the protection afforded by the present law. If H.R. 1886 were enacted, the instances in which farm workers are cheated out of wages, are housed in unsanitary, dangerous shelters and are killed on the highway in unsafe vehicles will increase, not diminish.

The provisions of H.R. 2757 are effectively identical to the housing provisions of H.R. 1886. This bill appears to be an outgrowth of a dispute between cherry growers in Washington State and OSHA. Apparently, growers, farm laborer advocates and others reached an agreement whereby, in return for funding for permanent housing, growers would be permitted to house farm workers in pup tents provided by the farm workers themselves. The agreement violated the state's own health and safety laws and violated federal OSHA as well.

OSHA stepped in and said that while tents were permissible, those tents must be better than pup tents. OSHA also objected to the failure of the agreement to provide basic amenities such as lighting and refrigeration for workers. In OSHA's view, a cooler of ice was not an acceptable refrigeration system. While the growers were prepared to house farm workers in pup tents, the part of the agreement calling for funding for permanent safe housing was never implemented. The inadequate temporary housing of the agreement was on track to become a permanent solution until OSHA stepped in.

H.R. 2757 would have precluded OSHA from acting. Frankly, I'm amazed that anyone would take issue with OSHA's actions. I think the agency is to be commended. The need for safe, adequate housing is constant. It should not be sacrificed temporarily or otherwise for the convenience of growers, contractors, or legislators. If anything, what transpired in Washington reaffirms the need for the federal regulation. We do not need new legislation. The present law is far superior to the bills that are being offered as amendments.




Chairman Ballenger. Major, I'm sorry that the three Congressmen who've got the bills weren't here to at least defend themselves.

So if you gentlemen will start. Let me first of all introduce them.

Mr. Michael Gempler from the Washington Growers League, Mr. Walter Kates from the Florida Fruit and Vegetable Association, Mr. Bryan Little from the American Farm Bureau Federation, and Mr. Michael Ramos from the Washington Association of Churches.

Let me remind the witnesses that under committee rules and they should limit their oral statements to five minutes but their entire written statements will appear in the record. We'll also allow the entire panel to testify before questioning the witnesses.

With that said, Mr. Gempler, you may begin your testimony.




Mr. Gempler. Thank you, Mr. Chairman, Members of the Committee.

My name is Mike Gempler. I'm Executive Director of the Washington Growers League in Yakima, Washington. We deal exclusively in labor and employment issues on behalf of agricultural employers in our state. We're a member of the National Council of Agricultural Employers, a national organization representing growers on agricultural labor and employment issues, and I'm speaking today on behalf of both organizations.

Farm worker housing in Washington State has been the focus of much media attention over the past couple of years, and the irony of that is that it's resulted from a concerted effort by elected officials, growers, and state agencies to find a practical way to supply more good quality employee housing, both on farms and in communities.

So we've made it an issue ourselves. The most concentrated focus has been on the cherry harvest. We want to have more safe and decent shelter for migrant farm workers. We have a shortage of facilities for people who come to our state to work in short-term seasonal crops, and I think it's safe to say that probably every state in the country is in the same situation, and we are trying to do something about it.

But the way that farm worker housing is regulated is part of the reason we have a shortage, and that's what brings us here today. For over a decade, legislators in our state have been working to formulate effective, practical housing regulations and to develop a sufficient number of facilities for farm workers, both migrant and local workers. The issue has been impacted by a lot of agendas and fears, both real and imagined. We've had omnibus legislation fail repeatedly over many decades.

In the mid '90s, we had a bipartisan group of legislators who started developing farm worker housing legislation on a piece by piece basis, I guess you would say. This approach has proven far more successful and has had more of an impact on real life availability of housing.

The bill before you now, the HOME Act, is created in that same spirit. It's a bill that will result in more good quality employee housing provided on farms because the regulation of that housing will be simplified without removing regulatory protection. That's the essence of this bill. Reduce the redundant regulation as a barrier to development of good quality employee housing on farms without removing regulatory protection.

We need to develop more good quality farm worker housing, both on and off the farm. We've made an effort at building more on farm housing, but our efforts have been thwarted by frequent changes in regulation, lack of coordination between the agencies, both state and federal, and if this nation creates a better regulatory environment for the development of employer-supplied housing, employers will provide more housing for migrant workers. This should be an objective of the United States government.

The jurisdiction over temporary worker farm housing by the Department of Labor's Wage and Hour Administration is redundant and should be removed. This legislation will do that. The Wage and Hour Division regulates housing on farms by way of the Migrant Seasonal Agricultural Worker Protection Act. Under the HOME Act, when employer-supplied housing is removed from MSPA coverage, Wage and Hour won't have jurisdiction any more over this OSHA or state housing regulations.

Instead, responsibility for enforcing these regulations will rest exclusively with the agencies by which they were promulgated. OSHA regulations will continue to apply to employer-supplied farm worker housing.

In state OSHA states, the state regulatory agency responsible for administering all OSHA regulations will still have the responsibility to enforce regulations, at least as effective as OSHA, on all farm worker housing supplied by employers. In addition, some states, such as ours, have additional agencies with regulatory jurisdiction over employer-supplied housing. In our state, the Department of Health has primary inspection and regulatory responsibility, in addition to the State Department of Labor and Industries.

If the HOME Act were passed into law, growers in Washington State would still have three agencies regulating farm worker housing: OSHA, WSHA, and the Department of Health. The great benefit of this bill would be a better regulatory environment for development of much needed worker housing. We'd have fewer mixed messages regarding regulatory requirements between agencies, less grower confusion about housing regulations. We feel bounced between agencies right now.

We'd have more innovation and new types of housing, the potential for citations by more than one agency for the same violation would be less likely. We'd have less competition between agencies. I think one issue that needs to be looked at here is that we have four agencies regulating housing now in our state. What we need is good regulations, good statutes with adequate enforcement. I don't think it matters whether we have one, two, three, four or more agencies covering it. We need to eliminate this double jeopardy, the competition and confusion between agencies, but have good regulations and laws that are adequately enforced.

That's where we need to get. We think that's a better regulatory environment and the HOME Act will create that better regulatory environment, and we ask you to take action to pass this act.

Thank you.




Chairman Ballenger. Thank you, Mr. Gempler.

Now, Mr. Kates, you may begin.




Mr. Kates. Thank you, Mr. Chairman. Mr. Chairman, we've submitted some written testimony and what I'd like to do is just merely summarize it at this time if I could.

Mr. Chairman and members of the committee, my name is Walter Kates. I'm the Director of Labor Relations with the Florida Fruit and Vegetable Association. The Florida Fruit and Vegetable Association is a nonprofit agricultural association representing growers, handlers, and shippers of vegetables, citrus, sugar cane, and




tropical commodities grown in Florida. The Florida Fruit and Vegetable Association is a member of the National Council of Agricultural Employers, which is based in Washington, D.C., and represents growers and agricultural organizations on agricultural, labor and employment issues.

I am testifying today on behalf of those organizations in strong support of the MSPA Clarification Act of 1999 introduced by Mr. Canady of Florida.

Mr. Chairman, I'd like to emphasize the fact that neither we nor the bill seek to weaken or lessen any of the worker protections presently afforded by farm workers under the Migrant Seasonal Agricultural Worker Protection Act. For the most part, what the bill attempts to do is merely clarify some of the original provisions within the Act which are now being interpreted by the Department of Labor in a manner never intended by the original sponsors in 1982.

While there are several examples of the Department's overly expansive interpretation of the Act, one of the more obvious illustrations of the Department's efforts to go beyond the intent of the Act is in the area commonly referred to as joint employment.

Under MSPA, Congress intended that the term "employment" or "employee" be defined by reference to the Fair Labor Standards Act which defines the term to mean, ``To suffer or permit to work" and includes the FLSA principles of joint employment. The term "joint employment" simply means the conditions in which the worker is an employee of two or more persons simultaneously. The effect of a joint employment relationship is to make those who are joint employers equally responsible for MSPA violations.

As a consequence, in agriculture, a grower who employs a farm labor contractor and is determined to be a joint employer with the contractor, may be responsible for MSPA violations committed by the labor contractor, even though the grower had no knowledge of the contractor's action. Under MSPA, by regulations promulgated by the Department of Labor, the Department has gone far beyond the FLSA definition of what constitutes joint employment in agriculture and instead has created a strict liability standard for growers who utilize the services of Department of Labor contractors.

In 1983, the Department of Labor promulgated its regulations implementing MSPA and, as part of the rule, defined joint employment in the same terms as is defined under the Fair Labor Standards Act, which was the reference Congress instructed the Department to follow. However, on March 12, 1997, the Department of Labor issued a new rule regarding what constitutes joint employment under MSPA and, under the new rule, it is now nearly impossible for growers to avoid joint liability when they use the services of a farm labor contractor.

The new joint employment rule is an effort by the Department to achieve, through regulatory authority, a broadened and joint liability rule that circumvents its failure to enact a strict liability standard as part of MSPA when it was originally passed by Congress. The application of the new rule ensures that every grower who uses a farm


labor contractor will be the joint employer of the workers. By virtue of this regulation, the Department reversed 14 years of regulatory and judicial interpretation that clarified the standards for determination of joint employment.

Mr. Chairman, this has created a serious problem for growers. Not only are they treated differently than any other employer when determining whether or not a joint employment relationship exists, they are also held to a standard which guarantees a joint employment relationship and, thus, liability for violations not committed by or even with the knowledge of the grower. As noted earlier, the joint employment concept in MSPA was borrowed from FLSA, which was also interpreted and enforced, by the Department of Labor.

Yet, the Department has not revisited its FLSA rule on joint employment with

respect to all other employers, but instead has arbitrarily imposed a more strict liability standard on agriculture through MSPA that other employers do not suffer.

Mr. Chairman, enactment of the MSPA Clarification Act is extremely important in correcting the Department of Labor's unwarranted expansion of the joint employment concept within the agricultural community. Passage of this bill will merely require the Department to employ the original joint employment rule which was enacted shortly after MSPA was passed in 1982 and conformed with the principles used under the Fair Labor Standards Act to determine joint employment.

In conclusion, Mr. Chairman, we appreciate the opportunity to appear before your committee today to present the views of NCAA and FFVA on this extremely important bill. Hopefully, based on our testimony today and the testimony of other witnesses which have appeared before you to explain other problems associated with the misinterpretation of MSPA, Congress will agree to bring MSPA back to its original intent when it passed the bill.

Thank you, Mr. Chairman.





Chairman Ballenger. Thank you, Mr. Kates.

Mr. Little, you may begin.




Mr. Little. Thank you. Mr. Chairman and Members of the Workforce Protection Subcommittee, I thank you for the opportunity to appear today to present the views of the American Farm Bureau Federation.

I come before you today to discuss specific concerns farm employers represented by the Farm Bureau have had with recent interpretations of the prime federal law seeking to protect farm workers, the Migrant Seasonal Agricultural Worker Protection Act.

In the 105th and 106th Congresses, Representative Charles Canady of Florida has introduced H.R. 1886 to clarify various features of MSPA. Farm Bureau supported this legislation. More recent problems pertaining to the transportation and housing of farm workers has led to the introduction of legislation by Representative George Radanovich, H.R. 3121, and H.R. 2757 by Representative Doc Hastings of Washington State. Farm Bureau supports these bills also.

My colleagues here today will discuss in more detail our concerns about joint employment, the family farm exemption and housing. I will focus on needed reforms pertaining to the transportation of migrant farm workers.

One key reform in Mr. Radanovich's bill deals with insurance of farm worker transportation vehicles. In 1995, Mr. Goodling, of Pennsylvania, the Chairman of this overall committee, led an effort to ensure that workers' compensation should be the sole financial remedy for workplace injuries in agriculture, as it is in all other industries. P.L. 104-49 also sought to address the ongoing problem of transportation not covered by workers compensation.

Prior to passage of P.L. 104-49, MSPA rules required such insurance in the amount of $1.5 million for vehicles carrying up to 15 passengers and $5 million for those carrying 16 or more passengers. Unfortunately, the Department of Labor took only a small step to correct this situation when it promulgated rules to implement P.L. 104-49. The Department created a new and unique liability standard of $100,000 per seat in the vehicle. This would reduce the insurance required for a six-seat sedan from $1.5 million to $600,000, but it resulted in no change for transportation insurance requirements for vehicles seating 15 passengers.

In any event, these insurance thresholds are still too high. The real problem comes in the practical application of this threshold. During the rulemaking process, the Department was told by insurance industry experts that there is no actuarial or other insurance principle that warrants determining liability limits on a per seat basis. In effect, the insurance industry told them we have no idea how to write insurance this way.

Further, insurance industry comments to the DOL indicated that experience with agricultural vehicles does not justify setting liability limits at the high levels required under DOL's final rule. This transportation insurance scheme unfortunately does nothing to ensure safer transportation for farm workers.

Too often, farm workers rely on informal and semi-formal farm worker transportation arrangements in sort of a gray market. Very often, transportation providers that are not farmers or farm labor contractors are not registered under federal or state law, are uninsured and are unregulated with respect to safety.

At Farm Bureau we believe that regulatory reforms should be undertaken to bring this gray market into the open and to encourage responsible parties to provide transportation. To the extent that farmers and farm labor contractors provide

transportation services to farm workers, this activity is insured through workers compensation. So-called ride-teros can be encouraged to provide better, safer and sure transportation by reforms like that in Mr. Radanovich's bill.

Mr. Radanovich has proposed to resolve the problem with federal transportation insurance requirements, discouraging the provision of insured and inspected transportation by simply giving responsibility to regulate such insurance to the states. State regulation is the norm for virtually all other forms of liability insurance including workers compensation vehicle insurance. Mr. Radanovich's bill will permit California and other states to tailor insurance requirements to unique local conditions and offer states flexibility to encourage safe, inspected and insured transportation for workers.

Mr. Radanovich's bill also seeks to correct a problem that has arisen from the Department of Labor's rather strained interpretation of carpooling in agriculture. When the House drafted MSPA in 1982, it clearly intended that as long as workers ride to and

from work voluntarily with another worker who receives no fee or other benefit from the employer for providing rides, the activity is carpooling and is thus beyond the scope of MSPA.

Despite the House's stated intent, the Department of Labor has taken the view that the source of compensation is irrelevant. Thus, according to DOL, if a carpooling worker can not demonstrate that he has not accepted compensation beyond his operating expenses, he is a farm labor contractor for the purposes of MSPA.

Mr. Chairman, with all due respect to the Secretary of Labor, this interpretation is a little bit silly. Making matters worse, the DOL could assert that under its new and unique joint liability doctrine, that the grower is jointly responsible should a farm worker be insured in a motor vehicle accident while riding with a ride provider. Given the Department's recent interest as evidence in the Southwestern United States and other places in asserting that carpooling farm workers are in fact farm labor contractors, this situation clearly needs to be corrected. Mr. Radanovich's bill will make a simple reform by specifying that such a ride provider is not a farm labor contractor.

Unfortunately, time does not permit me to go through Mr. Radanovich's entire bill and tell you about all the things that we like about it, but let me just finish by saying that Farm Bureau urges the swift consideration of H.R. 1886, H.R. 2757, and H.R. 3121. We look forward to working with the Worker Protections Subcommittee and the Education Workforce Committee to pass these important bills.

Thanks for your time and attention. I'd be happy to answer any questions you may have.




Chairman Ballenger. Thank you, Mr. Little.

Mr. Ramos, you may begin.




Mr. Ramos. Good afternoon, honorable members of this subcommittee.

My name is Michael Ramos. I'm Project Director of the Washington Association of Churches, the Washington State Ecumenical Association of the major Protestant denominations, and the Roman Catholic Church.

As a layperson, I have worked for 17 years in church ministry including six years in Northern California coordinating Hispanic ministry.

As part of our farm worker research project, I've spent time over the last two summers visiting farm workers in their camps in Central and Western Washington. I was struck by a worker in the West who, in his early 20s, made $36 for a full day's work

bending down and picking strawberries. I saw what it was like to pick and lug around 40 pounds of apples to make the equivalent of $4 per hour.

Finally, I was moved by the woman who worked for a dozen years in the fields raising four children by herself to, in her words, ``not allow her children to be hungry.''

This woman, who now having left the fields, proudly showed me the small house she had saved to buy and which now shelters other migrant workers.

The Washington Association of Churches' interest in farm worker issues stems from the Biblical mandate to affirm and uphold the rights and dignity of farm workers as children of God while recognizing the appropriate role of government in insuring the workplace safety and well being of farm workers.

We have provided thousands of dollars of emergency assistance to farm workers in Washington State this summer. Churches that I work with have run day care facilities, coordinated worship services, offered concerts, rebuilt benches and tables and provided food, clothing, sleeping bags, and bathroom kits to farm workers who lived in tent camps and trailers in regions where no federal, state, county or city employee could be found.

Some denominations have built permanent community-based housing. Others are looking at building durable migrant housing. The churches are not standing by while workers suffer. They seek to be part of the solution.

Farm workers, as you know, do not have an easy life. Their work is backbreaking, their wages are meager, around $6,500 a year. The State Department of

Health in Washington noted a couple of years ago that lack of adequate health care, improper nutrition, and pesticide residue are all linked to the environment fostered by substandard housing.

Ironically, the report then proceeded to support the creation of housing that does not meet federal minimum standards, proposing instead housing that allows for K-Mart


coolers instead of refrigeration, inadequate hand washing and bathing facilities, open air cooking and storage and employee-provided tents that subject workers to the weather elements which vary by extremes in Washington State.

Despite state efforts to attract owner-provided housing, state-approved standards that do not meet federal minimum requirements have proven neither a healthy alternative nor an antidote to homelessness. One worker told me that the only difference between being homeless in a national forest and living in a tent on grower-provided property was that in the forest he could decide when to cook.

To allow the states the option to comply with state or federal standards would mean a type of housing devolution where states can move below federal minimum standards for grower-provided housing, as has been attempted without success in Washington. This would be tantamount to legislating third world living conditions to farm workers nationwide. If growers who are facing real pressures in the face of global economic competition need to maximize profit, then they, with state support, have a strong incentive perhaps to join in a race to the bottom in the provision of housing for migrant and seasonal workers.

Safe, decent housing that meets federal minimum standards is the least that growers can provide to the biggest asset they have, namely their workers. Economically, a work force that is close to where crops are harvested and who are healthy, rested and content will provide a more loyal, consistent, and productive group of employees.

One cherry grower told me this summer, As a grower, I feel like I have some obligations. I want to make things better. My obligation is to pay a fair wage, to provide some place to stay. It is convenient to have the workers stay on your property. I can get a hold of them if I need to. I can continue a relationship with them in housing that is improved. This grower took the risk to use military-style tents that meet federal minimum standards. He expected to turn a profit this year, even with a smaller crop.

In human terms, the day to day living in pup tents is a constant struggle. One woman carrying a toddler spoke of sand blowing into her tent and onto her food in her legal grower-provided camp. She spoke of being alternatively hot and cold and of rain soaking her children. Another woman said, after four days living in a grower-provided pup camp, my family and I left the farm and went to Montana to work. We were given a trailer with its own kitchen and bathroom. I know Washington growers say that they can't afford housing, but that orchard was much smaller than the one in Washington.

Are cabins and military-style tents with platforms with a toilet, shower, electricity, hot and cold water, and a refrigerator such onerous conditions that lower state standards that need to be permitted so that growers will provide housing? If the moral criterion is the God-given indignity of the worker and the mutual reciprocity of the employer/employee relationship, then a national enforced minimum standard must remain in place.

Regarding the several changes being proposed to the MSPA legislation under H.R. 1886, it is both unfair to responsible growers and unjust to farm workers to try to amend a law that was enacted to strengthen regulations that had failed to reverse the historical pattern of abuse of migrant and seasonal farm workers.

Finally, when AWPA was first passed, Congress understood that state agencies can not adequately protect workers' rights to safe and healthful housing. That is why it required that housing be inspected and that it meet federal and state standards. That principle should be preserved to protect farm worker dignity, health and well being. In an era of abundance, we need to recognize the integral process and the central role that farm workers play in getting the fruits and vegetables that we expect to eat on our dinner tables.




Chairman Ballenger. Thank you, Mr. Ramos.

I want to remind members of the committee that Rule 2 imposes a five minute limit on questions, and the Chairman will now recognize members for any questions they wish to ask the witnesses.

Major Owens, would you like to go first?

Mr. Owens. Chairman, I'll follow you.

Chairman Ballenger. All right. I have several questions. One of the things that I find really difficult, and it would apply to just about everything that each of you spoke, our unemployment rate in the very industrial area of North Carolina is two percent or less. We have a substantial numbers of Hispanics moving into the community, and it's strange that farm workers are actually much more regulated than industrial workers are. Because I know it's been fairly common, and it may be common in your area also, that if they get industrial jobs, you'll find 15 or 20 of them living in the same house with no regulations at all.

I'm not justifying it. I'm just saying that's the practicality of the way it works, and I think I've heard the same things applying to New York City. In fact, some of the people here that were talking about going to sweatshops in the New York City area, people are living exactly the same way.

Again, you can't justify the living situations such as that, but when you compare the efforts or restrictions, either restrictions or efforts on the part of farmers who hire workers from other countries, mostly Mexico I think, to my way of thinking, it's wonderful that they try to give them housing. I doubt seriously that everybody down there is a crook, that the only reason that they have nice housing is because the federal government is sitting there with a hammer and a guarantee that they're going to sue you or fine you or whatever else happens.

And I know in an area, a little town called Morganton in North Carolina, these are not farm workers. These are chicken pluckers. I mean they work in a chicken factory. It's another one of those places where they live 25 or 30 to a house.

But the people that live in that community complain that on Fridays you can't get to the post office because of these people sending home money orders. I know these people are probably earning the minimum wage, you know, $10,000 - $11,000, which is the minimum wage measure if you work 2,000 hours a year, which most industrial workers do.

But I would like to ask Mr. Little, is it customary practice for farmers to provide transportation for their workers from the place of residence to the job site? Is that customary?

Mr. Little. It depends on where you are. In some areas of the country, it is customary. In other areas of the country, it is not.

If you ask farmers in California, what you will find is that very often their workers, in effect, get themselves to work. They own automobiles. Very often, three or four or five workers might pool their resources and buy an automobile together.

And so if you ever were to have the opportunity to visit Central Valley in California, the San Joaquin Valley, and be there during the raisin harvest, the table grape harvest, some of the other commodities they grow there, what you will see, it's sort of not what you would expect to see in a rural area. You will see, or particularly you'll see it in onion harvest, something like that, where they'll harvest one field and then they'll move everybody's cars and park it on that field and then harvest the next field over, and you

literally have to plan harvest activities around where they're going to park all the cars that belong to all the workers that come to work on the farm.

Of course, that's particularly a problem there because that's got to be one of the most intensely cultivated parts of the world, and they cultivate right up to the ditches on the side of the road. If you pull off the road, there's literally no place to park your car.

Now, in other parts of the country, it is customary for farmers to provide transportation from wherever it is they live to wherever it is they're going to be working. For example, in the Rio Grande River Valley of Mexico, chili harvest commonly is performed by workers who either live in Northern Mexico or live in West Texas around the El Paso metro area who are transported up the valley, either by farmers themselves or by other people who provide transportation for the workers or perhaps in workers' own cars carpooling themselves.

And so because there are so many different arrangements going on, workers owning their own cars, sometimes farmers providing transportation, sometimes other parties providing transportation, it seems to us that it makes sense to have federal regulation that is as flexible as it can be or, in the case of insurance, simply to have state regulation. Allow it to be treated in the same way that the insurance is treated that I have to buy for my cars.

Chairman Ballenger. Let me quickly ask one more of Mr. Gempler, mainly because some effort was made on your part, at least as far as the Congressman that was here before you, to work together. Would it be possible for the agencies with the jurisdiction over housing to have some sort of formal agreement that one agency would conduct the inspections and then share the information with the other three agencies that are responsible? Has anything like that been tried out there? I know he mentioned the fact that they were trying to work together.

Mr. Gempler. We've had a lack of coordination between the state and federal agencies historically, in my opinion, and this was addressed to some degree this August when we got them all in the same room at the same time and we now have an OSHA representative in the room as we negotiate new farm worker housing regulations, so everybody is talking to each other now a little better. We don't have a Wage and Hour person in the room but frankly, the Wage and Hour people take their key from OSHA.

OSHA, I should point out, has two tools to use. They can either ask the Wage and Hour people to enforce MSPA or they can tell the Washington State Department of Labor and Industries that the state regulations don't come up to OSHA standards and force them to bring them up to OSHA standards.

We have had a process going on for several years now with the state to address the cherry harvest situation, and we had a bipartisan effort, and we felt we had really come to a good solution. We had public health professionals look at the situation, and we know that something is not always better than nothing, but the question was, what kind of something was good enough? What was good enough for human beings to live on a temporary basis, short duration, warm weather, while they worked? And they put together a standard that required showers and sanitary facilities, refrigeration for medicines and that kind of thing, and we thought we had this plan pretty well together. We had the governor and his administration backing it, including Joe Deere and Michael

Silverstein, who used to be Research Director for OSHA here who's now head of our WSHA division in our state.

And we thought we had it worked out, but the OSHA people thought they were under a lot of pressure from some advocates and brought it to a halt at the last minute. It was very unfortunate. So I think we're off to a better start now.

Chairman Ballenger. Is Joe Dear running the WSHA program out there?

Mr. Gempler. No. Mr. Dear is chief of staff.

Chairman Ballenger. He sat in as an ex-OSHA Washington official and D.C. official, national official, in the negotiations you put together and then he was overruled as far as_

Mr. Gempler. Basically, the administration was overruled. Yes.

Chairman Ballenger. My time is up Major, your turn.

Mr. Owens. Mr. Gempler, current standards require a dry place to sleep, adequate ventilation, a privy, safe drinking water and sewage disposal, shower or bath facilities and effective insect and rodent control. Is it agreed that that's acceptable? What part of that standard do you contend is too stringent? Which of those would you like to see dropped?

Mr. Gempler. None of those were dropped. It was the opinion of our Washington State Department of Health and State Department of Labor and Industries that the program that they had developed, which by the way is no longer in force, there are no longer employee-supplied tents, not allowed any more.

Mr. Owens. No more what?

Mr. Gempler. Employee-supplied tents. Everybody keeps talking about pup tents. It's off the table. It's been overruled. No longer in place.

Mr. Owens. How long ago was that?

Mr. Gempler. Basically April.

Mr. Owens. April?

Mr. Gempler. Yes. Right before the cherry harvest. April/May. But the state, up until that point, thought that the program they had put together met all those standards and, in fact, did provide those protections. And basically it came down to whether or not employees should be allowed to supply their own tents, as they do when they camp in the state parks or county parks where a lot of them who pick cherries stay now when they come up, just like anybody else who wants to stay in the state park, where they have fewer facilities frankly. It's ironic.

But basically that was deemed unacceptable by OSHA and by several labor advocates. They disagreed with us that it did provide those kinds of protections. But we don't have any disagreement with the protections as they're stated.

Mr. Owens. I think you were quoted in The New York Times in 1998 as saying that some of these orchards may only have a six-day harvest.

Mr. Gempler. Right.

Mr. Owens. It's not economically sensible to build a full-scale apartment house that's sustainable for full year living just for a six-day harvest.

Mr. Gempler. Correct.

Mr. Owens. Which may answer or address Mr. Ballenger's observation that industrial workers are not regulated. Nobody is trying to protect them. They move into an area for much longer periods usually and they end up usually establishing permanent houses for themselves if the jobs are there and they settle for a while. But the migrant worker pattern is understood that it's going to take place every year.

Mr. Gempler. Right.

Mr. Owens. You're not going to have any permanency, so basic, decent accommodations for these workers is what we're attempting to achieve in the law. We know that farm workers have regularly been housed by crew leaders and the growers in squalid conditions and we found this out again and again. How do we improve anything by reducing the number of people enforcing the laws and the kind of laws that we have? You're posing it as too much regulation.

Mr. Gempler. Well, no.

Mr. Owens. Experience shows that if you don't have regulation, then you have these conditions.

Mr. Gempler. There needs to be adequate enforcement of laws and regulations that are meaningful and, as somebody said earlier in the hearing, you don't have meaningful regulation if it's not enforced. We just supported a bill in our state that was passed that creates more enforcement, adds enforcement agencies, centralizes it. In the Department of Health they're writing joint rules with L&I, so we agree that there has to be adequate enforcement.

But I think you need to examine the logic that if more agencies are better, why not, I mean you can take it to ridiculous extreme. Why not six, ten, twenty, thirty agencies covering the same situation? Because confusion happens and there's lack of coordination and you have one agency telling part of the regulated population one thing and another agency telling them another. It becomes an untenable regulatory environment.

So we want to see good regulation and good enforcement but we want it to be done in a way that's efficient where there's good communication between the regulators and the regulated population and so nobody gets stuck. Nobody gets bounced around. That's what we're trying to accomplish.

Mr. Owens. You're talking about not one agency of the federal government versus another. You're talking about levels of government, the county versus the state and versus the federal government. Is that what you're talking about?

Mr. Gempler. Actually, this would remove the Wage and Hour Administration from being an enforcing agency only. We would still have OSHA or their state OSHA agency and then any other state agencies that, by statute, regulate farm worker housing in a particular state. So OSHA would still apply nation-wide.

Mr. Owens. The bill before us would require the Department of Labor to give advance notice to the employer before an investigation could be commenced. Why should we inform potential law breakers, including farm labor contractors, who are suspected of abuses and threats against their workers? Why should they be given prior notice so they can destroy evidence or intimate witnesses? I'm not necessarily directing that to you. Anybody can answer that. Mr. Ramos, would you care to reply?

Mr. Ramos. I wanted to talk about several, well, without enforcement that includes a definition of the continuing the joint employer contract understanding under the law as it's existed over the years, there's really a dis-incentive to basically protect workers. The whole issue of farm labor contracting, the level of abuse under the Department of Labor's statistics, it's a very high level of abuse that can occur. And so the protection, removing that employer responsibility from the owner, the grower, basically allows for all sorts of abuses to_

Mr. Owens. So you would not be in favor of advanced notice.

Mr. Ramos. Advanced notice, definitely not. It takes away the_

Mr. Owens. What about 10 days to correct a violation?

Mr. Ramos. Well, it takes away the possibility of real enforcement. Many growers are responsible, but there's a lot of abuse out there among contractors and those who are involved with farm workers and their employment.

Mr. Owens. Should we be more reasonable and allow 10 days to correct violations?

Mr. Kates. Mr. Chairman, I believe we should, particularly if it's a paperwork violation that's a violation that didn't affect the worker one way or another. I think there ought to be a reasonable opportunity to correct that. Yes.

Mr. Little. Mr. Chairman, if I may take exception to your characterization, Mr. Owens, about the provision of H.R. 1886. It requires Department of Labor inspectors to conduct an opening and closing conference when they conduct an enforcement action. That's not the same thing as giving them advance notice before they show up. As I understand it, it is requiring them to go find somebody in a position of responsibility in a farm business and let them know that, 1.) they're going to be on the property, 2.) why it is they're going to be on the property, and 3.) when they're done, to come back by and talk to them and let them know what they found.

Mr. Owens. That was not our interpretation. It's my time, so I'll just close out.

Mr. Chairman, the Department of Labor has not been invited here today. That would help us resolve some of these questions. Since they have not been able to present their position, I ask that, in order to present a balanced record, I ask you to consider that

the preamble of the Department's joint liability regulation including the Department's response to the commentators on the regulation be included in the hearing record.




Chairman Ballenger. Without objection.


Mr. Barrett. Thank you, Mr. Chairman. Perhaps just an observation or two.

Mr. Little, I was interested in your comments about the carpooling and how it affects migrant workers and so forth to the point that even I think you suggested that a person or if a group of workers chipped in and bought the gas, the farmer or the employer would still be liable under that situation. Is that not what you were saying?

Mr. Little. The upshot of the problem has been that if the compensation received by farm worker A, who owns the vehicle from his fellow workers, who are carpooling with

him, is in excess of his actual cost of operating the vehicle. The Department has in some

instances asserted that farm worker A is in fact a farm labor contractor or is performing farm labor contracting activity under the terms of MSPA.

The problem there is not so much a problem from the farm worker's perspective as much as it is a problem for the farmer's perspective.

Mr. Barrett. Absolutely.

Mr. Little. Because the law requires the farmer to ensure that any farm labor contractor whom he hires is registered. It's required under MSPA. Obviously, since the farmer did not intend to hire this farm worker as a farm labor contractor, he didn't check his registration. Therefore, the Department sometimes asserts that he's guilty of hiring an unregistered farm labor contractor.

Mr. Barrett. Well, it's nice to know that one of the two bills will address that situation. Are you aware of any other fields of work where a similar situation would exist in terms of liability?

Mr. Little. Are you speaking specifically of the carpooling problem?

Mr. Barrett. Yes.

Mr. Little. I don't know of any.

Mr. Barrett. I'm not aware of anything either.

Mr. Gempler, I'm sorry I came in a little late, but I was interested in your comments about too many cooks in the kitchen perhaps in terms of investigating migrant housing, state, federal, OSHA, etcetera, etcetera. Then I think in answer to perhaps the Chairman's question you indicated that there is now more coordination whereas at one point in time there was a total lack of coordination.

Mr. Gempler. Yes. We formed a working group to implement the new legislation that was passed in our state last session that includes OSHA, our State Department of Labor, our State Department of Health and we even invited legal service grantees representing farm workers, pro bono attorneys representing farm workers to take part in the conversation and develop these standards so that we could work out differences, if any, right there rather than putting into place a regulatory scheme and then having the rug pulled out from under us at the last minute like happened last time.

That's an unacceptable situation because then we actually have a loss of housing and, frankly, what happened is when we had this Department of Health pilot program for the last several years, we had many thousands more workers, even though they were living in their own tents that they supplied, living in a controlled camping environment with showers and occupancy control and management and security as opposed to camping in not even camp grounds, on the side of the river or in the sagebrush somewhere without showers, without tested drinking water, without toilets.

And the Department of Health thought that was a better situation and so it's a shame because those people aren't living in controlled situations now. We have a rent-a-tent program that's OSHA-approved. They're basically big, soft shelled cabins, if you


will, concrete floors, electricity and so forth. But they're expensive and growers have to supply a lot of money to build the infrastructure, the sewage system, the electrical system, water system and so forth, build the shower facilities and all that.

But that's what we have to work with now, and so we're trying to make that work as well as possible. It's not going to house as many people, so we have fewer beds, if you want to put it that way, for farm workers now as a result of this. That's a real irony. The USDA and others have ponied up some money for infrastructure development grants in the last year. This is a pilot that we have starting next week, in fact, to help growers develop the water and septic systems and more of that needs to be done. We need migrant housing that's in the community as well as on the farm.

Chairman Ballenger. Some of your fears have been allayed, your concerns, but at the same time you have less housing.

Mr. Gempler. We have a more coordinated regulatory environment. I don't think we're going to get surprised by a federal agency pulling a trump card out right before the beginning of a growing season and throwing thousands of people out of a controlled living environment. But we are living with standards that do not allow us to house as many people in the short term and frankly, there was a phase-in program that the Department of Health wanted to implement to bring people up to a more stringent standard, get people into more controlled situation living on the farm, and then phase it in. And that was stopped.

Mr. Barrett. Very quickly, Mr. Chairman, if you would allow me one last question. Are written contracts common now between farm contract laborers and employers? Perhaps, Mr. Kates from Fruits and Vegetables in Florida, maybe you would answer.

Mr. Kates. Yes. In citrus, it's very common to have written contracts. In vegetables, it's less common. But you are seeing it become more and more common.

Mr. Barrett. Is that true with the rest of you in your experience in California, for example?

Mr. Little. As I understood your question, your question was whether or not it's common to have a written contract.

Mr. Barrett. Written contract.

Mr. Little. Farmer to farm labor contractor or farmer to farm worker?

Mr. Barrett. Between a farmer and farm laborer?

Mr. Little. Yes. Between a farmer and a farm laborer?

Mr. Barrett. Labor contractor.

Mr. Little. Between a contractor and a farmer, that's common for it to be a written contract. Between a farmer and a farm laborer, it is not.

Mr. Barrett. Okay. Mr. Gempler, would you agree?

Mr. Gempler. In our state, probably less than two percent of all the hiring transactions in our industry occur through farm labor contractors. They're not common at all, and we do have under MSPA the requirement to give terms and conditions of employment notice, worker information notice to workers, and on farms that are covered by MSPA, that is common at the first point of recruitment.

Mr. Barrett. Does anybody else have a comment?

Mr. Ramos. If I might interject on what Mr. Gempler was saying earlier around the housing issue. If the state and the federal government had been in conversation from the very beginning, as they are now, as growers and advocates are now, sitting around the table around a decent federal minimum standard around housing, we would not have had the problem that led to the legislation being brought to the federal level.

We're working out now, now that OSHA is participating in the conversation, the state thought it could get away without including OSHA in the conversation. If we had been talking about minimum decent federal standard for housing from the very beginning, as we are now, we would have come up with the solution and the rent-a-tent solution that has come up that was just tried out on an experimental basis, could have been implemented on a broader basis, and we could begin to work together.

I'm hearing Mr. Gempler talk about community-based housing. That's the solution in terms of the housing. I feel that the issue that was on a state level has suddenly been extrapolated to the federal level where now we're finding a solution by working together. So it's not just a question of coordination, but of communication around a commonly held standard that would be done away with.

Mr. Barrett. Thank you, sir. Thank you for indulgence, Mr. Chairman.

Chairman Ballenger. Just to follow up, are you saying that the reason

the negotiations fell apart, and the reason OSHA threw them out was because OSHA was not involved in the working negotiations? Is that what you said?

Mr. Ramos. They could have been brought in much earlier in the conversation. We knew that that standard was the law of the land and would be upheld. And many had spoken about that. We could have had a conversation around the table and begun to discuss that. So it's not a question only of coordination but around what standard we're talking about, and there's a big difference between the pup tents and the federally mandated law that becomes optional under the bill by Mr. Hastings.

Mr. Gempler. Well, we would have had the same result. We would have still_

Chairman Ballenger. Lost?

Mr. Gempler. Yes. We would have still lost thousands of beds for workers. I think the basic issue here is whether or not the federal agencies are going to work with real world problems and real world solutions with these state agencies that actually are on the ground every day licensing the camps with bipartisan solution to make an improvement

and a phased in program. And we don't want it to happen again. Wage and Hour is not currently at the table in the development of the regulations, and we think that having fewer regulatory agencies is going to be a much better regulatory environment.

Chairman Ballenger. Again, unless Major wants another question_

Mr. Owens. A couple of things for the record.

Chairman Ballenger. Sure. Fire away.

Mr. Owens. Just for the record, H.R. 1886 specifically prohibits Department of Labor from entry into a place of employment until after the Department has informed the person of the purpose of the investigation. That's Section 507, I think it is. Under H.R. 1886, an employer could withhold an employee's pay indefinitely. Then, when caught, the employer has 10 days to pay the employee without any penalty for what he's done.

Also for the record, I would like to submit The New York Times article on ``As the economy booms, migrant workers' housing worsens,'' Sunday, May 31, 1998.

Chairman Ballenger. Without objection.


Mr. Owens. I'd also like to submit testimony by Robert A. Williams, Director of the Migrant Farm Workers Justice Project, Florida Legal Services.

Chairman Ballenger. Without objection.


Mr. Owens. And I'd like to submit two letters, one letter written by Senator Slade Gordon of Washington to Secretary Herman and Secretary Herman's response, June 10 and July 1.

Chairman Ballenger. Without objection.



Mr. Owens. Thank you.

Chairman Ballenger. And again, let me just say I wish we had given you a more convenient day or a convenient time to work, and I apologize for hanging you up as long as we did. But I do greatly appreciate your information, and somewhere down the road these bills will come up next year. I'll guarantee you I'm not going to bring them up between now and Christmas, but something needs to be done, I think, and if we could just work together accepting the fact that working together might accomplish a great deal, maybe we could do something about it.

Anyhow, let me thank you for your testimony and thank the members for their questions and, if there's no further business, the committee is adjourned.

[Whereupon, at 4:30 p.m., the committee adjourned.]