FRANKFORT, Ky. — Lawsuits has been filed against five tobacco farms in Kentucky by migrant workers claiming they were paid insufficient wages and forced to live in deplorable conditions despite being hired through the federal H-2A program.
The three federal lawsuits were filed by Southern Migrant Legal Services (SMLS), a Nashville-based organization that handles legal matters for migrant workers in several southern states including Kentucky and Tennessee. According to SMLS, 39 guest workers filed the suits that allege violations of federal and state labor and civil rights laws, and a pattern of illegal conduct by employers in the Kentucky tobacco industry.
Caitlin Berberich, one of the lawyers representing the workers, said the lawsuits that were filed are "pretty typical" for the kinds of problems seen in the agriculture industry and in Kentucky tobacco.
"In particular, we get these kinds of complaints pretty regularly from workers in the tobacco industry," she said. "They’re just issues we see a lot and we’re trying to address on behalf of the workers."
The federal guest worker program, which is overseen by the U.S. Department of Labor, sets an adverse effects wage rate (AEWR) that varies from state to state and serves as the pay rate for migrant laborers in this country under the H-2A program.
In Kentucky, that rate for 2015 is $10.28 per hour, according to a DOL posting in the Federal Register. In 2013, when the alleged violations began, the rate was $9.80.
Information also contained in the DOL posting states: "The Department’s H-2A regulations at 20 CFR 655.120 (l) provide that employers must pay their H-2A workers and workers in corresponding employment at least the highest of: (i) The AEWR; (ii) the prevailing hourly wage rate; (iii) the prevailing piece rate; (iv) the agreed-upon collective bargaining wage rate, if applicable; or (v) the federal or state minimum wage rate, in effect at the time the work is performed."
The lawsuits claim the pay was often less than the federal minimum wage of $7.25 an hour and, in some instances, was $6 per hour.
The H-2A program also comes with guest worker housing regulations and must be inspected by the State Workforce Agency (SWA) prior to laborers taking occupancy.
Rick Alexander, who serves as the executive director of the Agriculture Workforce Management Agency, which helps farmers obtain H-2A workers, said housing is subject to Occupational Safety and Health Administration regulations and inspected by the SWA. Anyone getting workers through the H-2A program must go through the inspection process.
"SWAs in each state do the inspections and they get federal money to do the program. (Employers) have to prove they have housing and it has to be inspected," he explained.
All employers are subject to audits to check that workers are being paid according to the H-2A contract, and for anyone found not in compliance there are heavy fines to pay.
Alexander said the H-2A program is the only way for farmers to get temporary migrant workers and situations like the ones involving these lawsuits can give a black eye to the program.
"There are a lot of positives and a lot of people doing the program the right way," he said. "This is unfortunate, and at this point these are just allegations so we don’t know how much of it is true."
He said that if any wrongdoing has taken place, it is the exception and certainly not the rule.
