Published in partnership with The American Prospect
Mushrooms grown for the supermarket thrive on a mixture of straw and manure. Amid the pungent stink of ammonia, workers heat huge piles that spread the odor through the barns where they labor. They stack metal trays covered with the resulting soil high in the moist darkness of the sheds. Soon, familiar round white mushroom caps appear. Workers cut their stems and place them in 10-pound boxes. Runners ferry them out to a checker, where they’re weighed and counted.
An individual mushroom is very light, so picking 68 pounds an hour, as Ostrom Mushroom Farms demanded of its employees, meant working like a demon in the dark, dank barns, Jose Martinez-Cuevas noted in an interview.
“The smell was terrible. There were chemicals in the growing mix, which made it smell even worse, and they wouldn’t tell us what they were,” Martinez said. “The foreman would joke, ‘Don’t worry, you won’t die!’ If a picker protested, a supervisor would tell her, ‘If you don’t like it, there’s the door!’”
Last year, Ostrom’s management did show the door to dozens of experienced pickers, mostly local women who were immigrants themselves, and replaced them with crews of men brought in from Mexico under the H-2A contract labor program.
In filing suit against Ostrom, Washington state’s attorney general, Bob Ferguson, concluded that the firings constituted massive violations of worker protection regulations, including gender discrimination.
Ferguson’s August 2022 lawsuit in Yakima County Superior Court put pressure on Ostrom, which led to the company agreeing to pay a $3.4 million settlement. Ostrom’s money will pay damages to 170 of its former workers over their illegal firing and replacement. (The attorney general’s office is attempting to find other dismissed employees who could benefit from the Ostrom settlement.)
“It’s obvious what they did,” Ferguson said at a May 17 news conference. “They’re not paying [nearly] $3.5 million to the state of Washington unless they did something wrong.”
Ostrom has gone out of business, so no representative could be reached for comment for this article.
The Ostrom case is notable because the women were fired for failing to meet production quotas and because they were replaced by young male pickers. But it is particularly significant because the company used contract immigrant laborers on temporary H-2A visas to replace them.
“This settlement validates what we’ve been saying for years,” said worker advocate Rosalinda Guillen, a member of a state commission formed to monitor the negative effect of the H-2A visa program. “It is inherently abusive both to the workers brought to the U.S., and to the local workers the companies replaced.”
An Unsustainable Pace
In 2019 Ostrom moved its mushroom farm from the state capital of Olympia to Sunnyside, a small farmworker town in the Yakima Valley. Martinez-Cuevas went to work there soon after, making the metal growing trays. His voice sounded raw during an emotional phone interview about his memories of that time.
“I saw women crying because of the way they were mistreated,” he recalled. “Supervisors threatened them to get them to work faster. They were afraid they’d lose their jobs.”
Martinez-Cuevas and organizers for the United Farm Workers began holding meetings with the mushroom pickers to talk about forming a union. “People started to lose their fear,” he said. “At first, there were seven at a meeting, then 14, then more. We talked about the low wages and about fighting for our rights.”
Workers were particularly incensed, he said when the production quota was set at 65 pounds of picked mushrooms each hour. Their protests briefly got it lowered to 50, but later it was raised even higher, to 68 pounds.
Then Ostrom began bringing in H-2A workers. Under that program, growers and labor contractors can recruit workers in countries such as Mexico and bring them to work in the United States for a period of less than a year, although time-limited extensions are very rarely granted. Growers must file an application to bring the workers in, called an H-2A Agricultural Clearance Order.
Ostrom’s application, filed with the U.S. Department of Labor, sought permission to hire 70 workers who would start on Dec. 15, 2021, and then had to return to Mexico after Aug. 15, 2022. They’d be paid $16.34 per hour, or a wage based on picking 23¢ per pound, according to the application. To earn more than the hourly wage at that piece rate, the H-2A laborers would have to pick more than 71 pounds per hour.
In the clearance order, the company said that meeting that quota “is a requirement to hold the position of fulltime Harvester.” To ensure they had a crew able to do it, Ostrom’s labor contractor, H2 Visa Solutions, hired plenty of young men who were required to work faster. Under the visa program rules, these workers could only work for Ostrom, and the company could fire them for failure to meet the quota. Terminated workers on such visas must leave the country immediately, and they are routinely blacklisted by recruiters, who sometimes deny them work in subsequent years.
“It’s not called ‘close to slavery’ for nothing,” Guillen said.
Between January and May 2022, the company employed 180 local workers, mostly women, who lived in the Sunnyside area near the mushroom farm, according to the attorney general’s complaint. Starting in December 2021, three months before the H-2A workers arrived, “managers began calling domestic [local] pickers into one-on-one meetings in which the domestic pickers were told they were not meeting production minimums, and would be receiving a warning along with a three-day, unpaid suspension if their performance did not improve. The pickers were told they would be fired if they did not meet the production minimum within a week of returning from the three-day suspension,” according to the state’s complaint.
The quota for the mostly women local workforce officially increased from 62.22 to 68 pounds per hour. At the same time, the company stopped letting workers know what quantity they were actually picking each hour. Pickers often had to clean the mushroom growing rooms and dispose of garbage, but time spent doing such work was counted as though it was time spent picking and subject to the quota, the state’s complaint said.
“It was very stressful,” Martinez-Cuevas said. “The company used the pressure of the H-2A workers, right next to the local workers. They told the H-2A workers not to talk with us. Almost all were indigenous people from [the southern Mexican states of] Guerrero and Chiapas, and many didn’t speak Spanish.”
The complaint alleged that local workers were given written admonishments, suspended and then terminated. “Female domestic pickers received these warnings and unpaid suspensions more frequently than their male counterparts and were therefore terminated at a higher rate than their male counterparts.”
The document continues: “At least some female pickers believed that [Ostrom] instituted these changes in order to have a reason to suspend and terminate workers who they wanted to force out. … From early 2021 to May 2022, [Ostrom] terminated approximately 79% of their domestic pickers and 85% of their female pickers.”
Job Listing: Men Only
Under the visa program rules, Ostrom had to give hiring preference to workers in the U.S. Before bringing in H-2A workers, the company was required to advertise the jobs locally and to pay local workers at the same rate. But while it paid a guaranteed $17.41 per hour to the visa workers, it paid a lower wage to local residents, according to the complaint. While Ostrom’s public advertisements, and even the clearance order, required a minimum of three months experience, few of the H-2A workers met that requirement, even though local applicants were rejected if they didn’t meet it.
The company’s Facebook job advertisement, the only outreach effort it made, said it would hire “solo personal masculino” — only male personnel. Attorney Edgar Aguilasocho, vice president at Martinez Aguilasocho Law Inc. and general counsel for the UFW Foundation, said that the hiring process has to be approved by the Washington state Employment Security Department, and the employer simply self-reports the results. “It’s strange the petition [for H-2A visas] was approved,” he said. “Many domestic workers applied and were denied.” Ostrom reported hiring four local women as it hired 65 male H-2A workers.
Colombia Legal Services attorney Joe Morrison explained that legal aid offices have brought numerous suits in the past over the same violation.
Columbia Legal Services sued a large Washington State winery, Mercer Canyons, in one celebrated case reminiscent of Ostrom’s. Garrett Benton, manager of the company’s grape department, testified in a declaration that many of Mercer Canyons’ longtime local workers were told there was no work available or were referred to jobs paying less than the wages of H-2A workers. He charged that local workers “felt strongly that they were given harder, less desirable work for less pay. Mercer Canyons was doing everything it could to discourage local farm workers from gaining employment.” The suit was settled in 2017, and Mercer Canyons agreed to pay a $1.2 million settlement, with $545,000 of it going to local workers.
Growers generally have little to fear for violations of H-2A program rules, according to Guillen. In 2019, the U.S. Dept. of Labor filed cases against 431 of 11,472 employers using the H-2A program. “Lack of enforcement is a chronic problem and characteristic of a program set up to meet grower needs,” Guillen said.
On June 22, 2022, local workers at Ostrom tried to meet with the company over the discrimination. Instead of talking with them, the attorney general said, managers retaliated. Several received unjustified warnings, a step toward being terminated, and one woman was assaulted by a supervisor, according to the state’s complaint.
Later in September workers tried to deliver a petition to management and were sent home early without pay for the hours they were prevented from doing their jobs. A month after that, local workers were told they would have to bring in their immigration documents to verify their legal status.
Such re-verification of documents, which the company had seen and accepted at the time they were hired, is viewed by labor experts as a form of intimidation in a workforce that includes many undocumented workers.
“[Ostrom] started re-verifying workers after its workers began advocating for fair and nondiscriminatory workplace conditions,” the state’s complaint alleged.
Many workers were laid off in the fall of 2020. Martinez-Cuevas was recalled for a less-skilled position picking mushrooms instead of his old job building the metal trays. He was also given a quota by his supervisor — and then written up when he couldn’t meet it.
Finally, Martinez-Cuevas was fired. He believes it was because of his labor organizing activity.
In February, Ostrom sold the Sunnyside mushroom farm to a Canadian company, Windmill Farms, which also runs two mushroom barns in Ontario. Its subsidiary, Greenwood Mushrooms Sunnyside, then sent a letter to all the local workers telling them to apply for the jobs they were already doing. They also had to re-verify their immigration status.
Windmill Farms didn’t respond to a request for comment from Capital & Main, but in a statement to The Seattle Times, CEO Clay Taylor said the company is “committed to providing a healthy, safe and supportive workplace.”
Declining Enforcement
The use of H-2A workers to put production pressure on local farmworkers and eventually replace them has become a critical issue, partly because of the rapid growth of the visa program. More than 317,000 H-2A workers were brought to the U.S. in 2021, a 15% increase over 2020 and three times the number in 2013. In Washington State, there was a 10-fold jump between 2007 and 2019. By 2022, such workers accounted for a third of all farmworkers there.
The U.S. Department of Labor is supposed to enforce worker protections and keep H-2A workers from displacing local farmworkers. The protections are not always enforced, according to a 2022 Economic Policy Institute report on the H2 Visa program’s impact on workers.
While the Washington state attorney general was able to charge Ostrom with discrimination against women within the state, it is not illegal for H-2A recruiters to hire only men.
Daniel Costa, who is the author of the report and the director of Immigration Law and Policy Research at the EPI, noted that “an employer may select an entire workforce composed of a single nationality, gender, or age group” under the program.
Further, “employers and recruiters can also weed out workers who might dare to speak out against unlawful employment practices, assert their legal rights, or organize for better working conditions by joining or forming a union … by firing them and effectively forcing them to leave the country, or by threatening to blacklist them … ,” Costa said.
His report adds that the number of investigations of wage and hour violations for farmworkers in general has actually declined from 2,000 per year two decades ago to 1,000 per year in 2021. There were 30 fewer investigators of labor standards violations for all workers in 2021 than there were in 1973, even though the private labor force nationwide doubled during those 48 years, according to data from the Department of Labor statistics.
Meanwhile, enforcement responsibility runs up against an administration policy that has encouraged the growth of the program under both Democrats and Republicans.
At an April 2017 White House meeting, then-President Donald Trump told growers that, although he was targeting undocumented people for deportation, he would make the H-2A program easier for them to use. He then attempted to freeze the required H-2A wages for two years, which amounted to an effective wage cut as inflation curbed buying power. The incoming Biden administration rolled back that Trump initiative.
Yet President Biden continues to favor the growth of the program. Samantha Power, administrator of the U.S. Agency for International Development, thanked one meeting of growers at the U.S. Department of Agriculture last September for working with the administration on “a critical priority — expanding the pool of H-2 farmworkers from Central America, specifically from El Salvador, Guatemala, and Honduras … We have got your back.”
She added that, ”We are committed to helping maintain a strong pipeline of experienced farmworkers to support you.”
This policy of encouraging farm employers to expand the use of the H-2A visa program in Central America adds to those already being brought in from Mexico, stimulating the program’s growth.
This adds to the challenges, including displacement from their jobs, faced by farmworkers living in the U.S., most of whom are immigrants themselves.
Ironically, the United Farm Workers itself is also associated with an H-2A recruiting program called CIERTO, which operates in Central America in cooperation with the U.S. Department of Agriculture.
At the same time, UFW President Teresa Romero has called abuses of the program “close to modern day slavery,” and the union has advocated reforms.
When Romero went to Sunnyside in April to support the mushroom workers, she investigated the lodging the company had provided its H2-A workers. Elizabeth Strater, a UFW representative, said that the company had told the Labor Department it was housing workers in a public housing complex. “But we found that the workers weren’t there,” she said. “Instead they were living in what looked like an abandoned chicken coop. The state was supposed to inspect it, but obviously they just took the company’s word.”
After protests, the investigation and legal complaint by the attorney general, Windmill Farms did not bring in H-2A workers this year. But Martinez-Cuevas said that vans carrying dozens of replacement workers appear at the Sunnyside barns daily, while the fired workers have not been rehired.
Capital & Main asked the attorney general’s office why the settlement did not include rehiring the illegally fired workers. The office has not replied.
Meanwhile, workers continued to rally to demand union recognition. We have weekly meetings of our organizing committee,” Martinez-Cuevas said, and with the monetary settlement, attendance is up.
“People were very happy. In addition, some may be able to get help with their immigration status because they’re witnesses or victims of violations. Some want to go back [to their old jobs], while others say the mistreatment was too much,” Martinez-Cuevas said. “I’m sure the company doesn’t want to call me back because I helped start the union, but I’d go.”
“We all have to work. And we’re going to keep going until we get the union in. They can’t stop us.”
