CURRICULUM VITA Name: Gary Stephen Goodpaster. Birthplace: Indianapolis, Indiana. Education: 1955-57: United States Air Force Academy; 1959-61: Indiana University, B.A.; 1961-62: Columbia University Graduate Faculties; 1962-65: Indiana University School of Law, J.D.; 1965: Indiana University Graduate School. Graduate majors: Philosophy, Political Science, Law. (57 graduate hours in Philosophy and Political Science). Academic honors, awards, etc.: Phi Beta Kappa; B.A. with honors in Philosophy with highest distinction; Woodrow Wilson Fellowship; Weymouth Kirkland Scholarship in Law (3 years); Law Alumni Grant; Order of the Coif; J.D. with distinction; Reginald Heber Smith Fellow; OEO Legal Services Technical Assistance Consultant. Employment record: 1965-67: Law Clerk to Chief Judge John S. Hastings, United States Court of Appeals for the Seventh Circuit, Chicago, Illinois (now on senior status), 1967: Assistant Professor of Law, University of Iowa College of Law. 1969-70: Acting Director of Research; Supervisory Attorney, Grand Junction Office, Colorado Rural Legal Services. 1970: Associate Professor of Law, University of Iowa College of Law (tenured). 1971: Professor of Law, University of California at Davis. (Acting). Courses taught: Constitutional Law; Criminal Law; Criminal Procedure; Law and Poverty; Resource Planning (Environmental Law-Land Use PlanningUrban Problems); Legal Clinic Supervisor. Publications: Articles: 1. An Introduction to the Community Development Corporation, 46 J. of Urban Law 603 (1969). 2. Peonage: The American System of Migratory Farm Labor, Clearing House Review (National Institute for Education in Law & Poverty) October, 1970. 3. The Integration of Equal Protection-Due Process Standards and the Indigent's Right of Access to the Courts, 56 Iowa L. Rev. (December, 1970-to appear in January, 1971). 4. The Migrant Farmworker, a chapter in Race, Change, and Urban Society, a book to be published by Sage Publications, February, 1971, (Vol. V, Urban Affairs Annual Reviews.) Reviews: 1. Expanding Liberties, by Milton R. Knovitz, 42 Ind. L. J. 293. 2. Social Dimensions of Law and Justice, by Julius Stone, 43 Ind. L. J. 167. 3. Sociology of Law, by Rita James Simon, 10 U. of Arizona L. Rev. 746 (1968). Bar admissions: Indiana, 1965; Colorado, 1970; Iowa, 1971. Marital status: Married, four children. References: Dean David Vernon, Professor Arthur Bonfield, Professor N. William Hines, Professor David Baldus, and other members of the Iowa Law Faculty College of Law, Iowa City, Iowa 52240. Jonathan Chase, Esq., Executive Director, Colorado Rural Legal Services, Inc., 970 Aurora Ave., P.O. Box 1367, Boulder, Colorado 80302. Michael Schneiderman, Esq., Acting Director, Illinois Environmental Protection Institute, Office of the Governor, State of Illinois. Mr. O'HARA. I ask further consent that his seminar paper be printed, as if read, at this point in the hearings. Mr. GOODPASTER. The following paper on the regulation of working conditions for agricultural labor has been prepared for the use of the House Subcommittee on Agricultural Labor. The paper is not comprehensively detailed, but is intended to give an overview of the major forms of public regulation of agricultural labor, together with an indication of some of the major claims or arguments made. The nature of agricultural labor makes it difficult to draw a dividing line between working conditions and living conditions. An agricultural laborer often lives on the farm and views housing as an important adjunct to his work and his income. Similiarly, the availability of Federal food programs, such as food stamps or commodity distribution, increases his income, and he is likely to rely on them. Beyond this, a crew leader who recruits and manages farm laborers can affect the working and living conditions of migrant workers in many ways. The existence of a farmworker labor pool surplus may also affect such conditions through competition, causing farmworkers to accept less favorable conditions than they otherwise would. For such reasons, I have treated both regulation and working conditions broadly. Regulation includes both direct and indirect regulation and the realities of regulatory enforcement. Working conditions include wages, hours, social insurance, health and safety on the job, housing, and the circumstances of participation in some of the major Federal benefit programs on which farmworkers rely heavily. For the most part, the procedure followed in this paper is to describe the state of the law without comment, and then to discuss actual practices, generally well documented, which affect the enforcement and administration of the law or the position of the farmworker. WAGES In 1969, there were 257,000 domestic migratory farm wageworkers out of a total domestic hired farmworking force of 2,571,000 persons.1 Of these migratory workers, 99,000 were under the age of 17.2 The mediam daily earnings for the male migratory farmworker in the same year were $10.80, or $1.55 less than median earnings for the prior year. On the average, he performed 78 days of farm labor for a total wage of $891, and 50 days of nonfarm labor, for a total wage of $841.* He thus worked a total of 128 days for a yearly income of $1,732. At this level of income and employment, it is obvious that the chief concern of the migratory worker is income. Direct public regulation of wages paid to migratory workers is limited to State and Federal minimum wage laws, for farmworkers working on sugar beets, wage regulation under the Federal Sugar Act. There is indirect regulation of wages and other working conditions under the Wagner-Peyser Act, which established a nationwide system of farm labor employment referral offices. Finally, agricultural labor does not, for the most part, partake in such indirect regulation of wages and working conditions as occurs under the Federal National Labor Relations Act and State labor relation acts. 1 Migrant and Seasonal Farmworker Powerlessness, hearings before the Senate Subcommittee on Migratory Labor, 91st Cong., 1st and 2d sess., pt. 7A at 4268 (1970). Hereafter referred to as Migrant Powerlessness. 2 Id. at 4283. 3 Id. at 4290. * Id. at 4300. MINIMUM WAGES FEDERAL MINIMUM WAGES Fair Labor Standards Act Farmworkers were not included in the minimum wage protections of the Fair Labor Standards Act until 1966. Even under the 1966 amendments, however, all farmworkers are not covered, and even when covered they are to receive the rate of $1.30 per hour rather than the national minimum wage rate. Only farmworker employees who utilized 500 man-days of agricultural labor in any quarter of the preceding calendar year and who were engaged in interstate commerce, which currently is defined as an enterprise having an annual gross volume of sales of not less than $250,000, are required to pay minimum wages to their employees.' This 500 man-day requirement serves to exclude most farmworkers from the minimum wage provisions of the FLSA. In 1967, only 2 percent of all farms employing farmworkers used more than 500 man-days of farm labor, thus covering only 35 percent of 1.1 million workers in that year. Beyond this, covered adult workers are excluded from the overtime provisions of the FLSA, thus encouraging employers to extend the workweek rather than hire more farmworkers. Virtually all local, seasonal piece-rate workers are excluded from coverage.10 Finally, hand-harvest, piecework farmworkers under the age of 17 working on the same farm as their parents are also excluded.11 State minimum wage laws 8 The following chart collects information relating to State minimum wages for agricultural workers.12 STATE MINIMUM WAGES FOR AGRICULTURAL WORKERS 1 Hourly rates of $1.65 for women and $1.35 for minors, originally due to become effective Feb. 1, 1968, have been suspended pending legal action. 2 Exemption of 20 weeks when 11⁄2 the regular wage is paid for work over 48 hours a week. * Will rise to $1.50 an hour on Feb. 1, 1969. ♦ Nonseasonal workers and time-rate workers only. Under the State law, piece-rate wages for various crop activities can also be established. 5 29 U.S.C. § 291 et seq. 629 U.S.C. § 206 (a) (5). 729 U.S.C. § 213 (a) (6); 29 U.S.C. § 203 (s). 8 The Migratory Farm Labor Problem in the United States, 1969 Report of the Senate Subcommittee on Migratory Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 2d sess.. at 56 (1969). Hereafter referred to as 1969 U.S. Senate Report. 29 U.S.C. § 213(b) (12). 10 29 U.S.C. § 213(a) (6). 11 29 U.S.C. § 213(a) (6) (D). 12 Taken, with minor changes, from 1969 U.S. Senate Report at 60. In only four of these States-Massachusetts, New Jersey, California, and Wisconsin-is the coverage meaningful. In the remaining five, limited coverage, exemptions of federally covered employers, and nonapplication to pieceworkers mean relatively little State minimum wage coverage. States also have maximum hour and provisions for men, women, and children. Typically, women and children are limited to 8 hours of work a day. Agriculture and agriculture-related industries are often excluded from such provisions; and there are often exemptions in cases of emergencies or to process perishables to prevent their spoiling.13 Five reasons are offered for the exclusion of farmworkers from minimum wage provisions: agricultural labor is unlike industrial labor; the employer would be burdened with recordkeeping; minimum wage guarantees would reduce incentive; the increased wage cost would make harvesting of some crops prohibitive; and higher wages would require an increase in food prices. Of these, only the last two merit serious consideration, and these two amount more or less to the same argument: the increase in farm labor wages cannot be absorbed by the grower nor passed on to the consumer. Available information, however, suggests that labor costs represent a small portion of the cost of agricultural products.15 With respect to the last portion of the argument, the amount of cost increase which would be passed on to the consumer of agricultural products is small, and as long as minimum wage regulation is nationally uniform, no competitive disadvantages arise from the necessity to pass on increased labor costs, except to the degree that economies of scale keep down overall costs of the producer. But this merely means that the competitive advantage of agribusiness farms over small farms which now exists will not be affected. Sugar Act Farmworkers working on sugar crops are protected by the Sugar Act.16 Under this law, the Secretary of Agriculture is empowered to adopt regulations and establish minimum wages to be paid for work on sugar crops. Minimum wage rates, both hourly and on a piecework basis, for farm laborers working sugar beets are established, after hearings usually quite well attended by farmers, by regulation. The regulations are detailed and specify the piece rates to be paid for each different hand-labor operation." Any worker who believes he has not been paid as required by the regulations is entitled to file a wage claim with the county Agricultural Stabilization and Conservation Service.18 After investigation and recommendation by the local county ASCS committee, an appeal may be had to the State ASCS committee, if necessary; and thereafter, to the United States Department of Agri 13 See 1 CCH Lab. L. Rep., State Laws ¶ 44,501. 14 Note, Workmen's Compensation, Minimum Wage, and the Farmworker, in Legal Problems of Agricultural Labor, 2 U. of Calif., Davis L. Rev. 113, 137-39 (1970). 15 Id. at 139; 1969 U.S. Senate Report at 55. 16 T.S.C. § 1100 et seq. (1964). 17 Current rates are a minimum wage of $1.75 per hour and piece rates of $12.75 for thinning, $16.50 for hoeing, $20.00 for hoe-trimming, and $10.50 for weeding. 7 C.F.R. 862.10. 18 7 C.F.R. 862.17. culture.19 If the finding is adverse to the employer, the government sanction is to withhold sugar beet subsidy payments from him, or at least, that portion of the subsidy payments equivalent to the unpaid wages.2 20 The regulations also provide that if a sugar beet producer employs a child under 14 or employs children 14 or 15 years of age for more than 8 hours a day, a deduction in Sugar Act payments will be made.21 Wagner-Peyser Act Under the Wagner-Peyser Act,22 there is indirect regulation of migratory farmworker wage rates. This statute created the United States Employment Service which acts in conjunction with federally funded State employment agencies to provide farm placement services for growers and farmworkers. One of the requirements for use of the system is that the wages offered an interstate migrant must not be less than prevailing wages in the area of work for local agricultural workers. The act and its regulations have recently been interpreted to imply civil remedies and damages for their violation.23 Thus, as long as interstate recruitment of farm labor utilizes the United States Training and Employment Service offices, farmworkers have an enforceable right to a promised wage. Beyond this, the Wagner-Peyser Act and its regulations also offer some minimum wage protections when employers anticipate a labor shortage and request a certification of temporary foreign labor. In such cases, the employer is required to offer employment to domestic workers at certain minimum hourly wages or equivalent piece rates prior to seeking the certification.24 Practices affecting wages actually received Public regulation of wages is one thing, actual wages another. Few States have laws providing farmworkers wage-payment and wagecollection protection to insure payment if the farmworker must leave before payment is forthcoming.25 Further, wage and work agreements between farmworker and employer which are regulated by minimum wage or piece rate standards can often be manipulated so that the worker receives considerably less than he thought he bargained for, while the employer pays less than he agreed or was required to pay. The actual circumstances of the work may also reduce income. These wage-reducing practices and circumstances are common, and together with poor enforcement of wage laws, can be surmissed to have substantial impact on farmworker wages. Indeed, a study conducted in 1969 in Michigan, which has a minimum wage for agricultural labor of $1.25 an hour, revealed that migrant workers consistently failed to earn an amount equal to the minimum hourly wage, because of work on piece rate scales, and that migrants worked a 40-hour week only at 19 Ibid. 207 C.F.R. 862.18. 21 7 C.F.R. 862.19. 329 U.S.C. § 49 et seq. (1964). 13 Gomez v. Florida State Employment Service, 417 F. 2d 569 (5th Cir. 1969). 24 20 C.F.R. 602.10, 10a. 21969 U.S. Senate Report at 61. |