Core topics include workers’ rights, inequality, race, gender, labor markets, education and immigration, but we’re interested in all things related to social justice.

Episodes

A new way to think about the minimum wage

In partnership with the Roosevelt Institute and Oklahoma Policy Institute, Economic Policy Institute hosted this webinar that shares a new, evidence-backed framework for raising the federal minimum wage. 

The webinar included Roosevelt Institute Director of Worker Power and Economic Security Patrick Oakford, Economic Policy Institute Senior Economist Ben Zipperer, Oklahoma Policy Institute’s Carly Putnam, and was hosted by Economic Policy Institute Executive Vice President Naomi Walker.

Oklahoma Policy Institute is part of EPI’s Economic Analysis and Research Network, or EARN, which is a network of close to 60 state-focused research, policy, and advocacy organizations in 43 states + DC.

Public education under attack

EPI’s Chief Economist, Josh Bivens; Director of EPI’s Program on Race, Ethnicity, and the Economy, Valerie Wilson; and Economist Hilary Wething, along with a special introduction by Peter Rivera from the Hewlett Foundation, discuss public education and how critical public goods are being attacked at both the state and federal levels.

Fully funded and strong public schools—with fairly compensated educators—lead to a society with high achieving students and fewer teacher shortages that disrupt learning. Yet policy initiatives such as school vouchers threaten to divert resources from public education when what is needed is greater investment, not less

AI—Making employee disempowerment new again

There is much panic around AI’s impact on the labor market. Efforts to blame inequality and unemployment on AI and technology divert attention from the root cause: excess employer power. The best “AI policy” to protect workers would be boosting workers’ power by improving social insurance systems, removing barriers to organizing unions, and sustaining lower rates of unemployment. Economic Policy Institute’s Chief Economist Josh Bivens and Senior Economist Ben Zipperer joined Director of Government & Advocacy Samantha Sanders in a conversation on how policymakers should respond to the rise of AI.

State of Working America Q1 Economic Briefing

Economic Policy Institute Chief Economist Josh Bivens and Senior Economist Ben Zipperer, in conversation with Senior Policy and Economic Analyst Chandra Childers, on how current policies are impacting working people and families, along with solutions that create a more affordable life for everyone.

Building worker power

The Trump administration brazenly attacks workers and their unions, undermining federal labor laws and emboldening corporate union busters. Amid this escalating US worker rights crisis, states across the country are stepping up to strengthen threatened labor standards, level the playing field for unionizing workers, and expand pathways to collective bargaining.

Enjoy this discussion with policy experts, organizers, and state advocates from EPI’s Economic Analysis and Research Network (EARN) on building worker power in the states when federal labor laws are under attack.

Who’s got the power?

Enjoy this conversation with author, labor historian, union organizer and Economic Policy Institute Senior State Policy Strategist Dave Kamper about his exciting new book, Who’s Got the Power?: The Resurgence of American Unions.

What’s missing from the affordability debate

Everyone is talking about affordability — and making the same mistake.
Enjoy this conversation from EPI’s webinar series, with Economic Policy Institute President, Heidi Shierholz; Director of the Program on Race, Ethnicity and the Economy, Valerie Wilson; and Chief Economist, Josh Bivens; moderated by Samantha Sanders, about what’s missing from the current debate!

Why We Have to Keep Talking About Reparations in 2025

In an environment where pursuing equity goals could invite dangerous scrutiny, one could reasonably ask: Is it still prudent to talk about reparations?  Join Kyle Moore, an economist with the Economic Policy Institute’s Program on Race, Ethnicity, and the Economy (PREE) for this episode of the State of Working America podcast about his piece on Why we have to keep talking about reparations in 2025.  

Rooted In Racism

In this episode, EPI’s Executive Vice President Naomi Walker is joined by Chandra Childers, senior policy and economic analyst with the Economic Analysis and Research Network (EARN), to discuss this history and impact of the Southern economic development model. Southern politicians claim that “business-friendly” policies lead to an abundance of jobs and economic prosperity for all Southerners. But is that true? The data actually show a grim economic reality. Learn more about the failed Southern economic development model in the Rooted in Racism.  series of reports at EPI.

The Democratic Advantage

EPI’s Executive Vice President Naomi Walker is joined by EPI Chief Economist Josh Bivens to discuss the historical economic performance of different administrations as detailed in his report, Economic performance is stronger when Democrats hold the White House. According to the report, there is a pronounced Democratic advantage in nearly every measure of macroeconomic performance since 1949.

Ask An Expert: Why have the lowest-paid workers seen historic wage growth?

• Economist Elise Gould discusses new Economic Policy Institute research showing that the lowest-paid U.S. workers saw historic wage growth between 2019 and 2022, even after accounting for high inflation.

Ask An Expert: What is the state of racial equity 60 years after the March on Washington?

Sixty years later, policymakers have failed to meet the economic demands of the March on Washington. Policy analyst Adewale A. Maye discusses new Economic Policy Institute research finding that post-civil rights era legislation has largely failed to address disparities in wages, wealth, and homeownership for Black Americans.

Ask An Expert: What does the surge in workers going on strike mean for racial and economic justice?

In 2023, workers across the country—from Hollywood writers to autoworkers, nurses, and Starbucks baristas—went on strike to improve their working conditions. Heidi Shierholz, president of the Economic Policy Institute and former chief economist at the U.S. Department of Labor, discusses what this surge in labor actions means for workers and the fight for racial and economic justice.

The Black Agenda

• Anna Gifty Opoku-Agyeman discusses her new book, The Black Agenda.
• Watch on YouTube

Fact-checking the labor shortage hype

• With Heidi Shierholz and Josh Bivens of the Economic Policy Institute
• Watch on YouTube

The Whiteness of Wealth

• With Dorothy A. Brown, author of The Whiteness of Wealth and Asa Griggs Candler Professor at Emory University School of Law
• Watch on YouTube

Democracy, Race, & Justice: Writings of Sadie Alexander. Nina Banks

• Nina Banks discusses her new book Democracy, Race, and Justice: The Speeches and Writings of Sadie T. M. Alexander.
• Watch on YouTube

Native Americans too often left out of economic debate

• With Patrice Kunesh, director of the Federal Reserve Bank of Minneapolis’ Center for Indian Country Development
• Watch on YouTube

Racialized women’s unrecognized community work uplifts everyone

• With Nina Banks, economics professor at Bucknell University and a board member at the Economic Policy Institute
• Watch on YouTube

America’s debtor prison system must be stopped • State of Working America Podcast

• With Damion Shade, criminal justice policy analyst at the Oklahoma Policy Institute
• Watch on YouTube

‘Curb Cut-Outs’: How Black America’s Struggles Bolster U.S. Democracy

• With Tanya Wallace-Gobern, director of the National Black Worker Center Project
• Watch on YouTube

America’s labor revival

• With Steven Greenhouse, author of Beaten Down, Worked Up and a long-time New York Times labor reporter
• Watch on YouTube

Millennials Energize the U.S. Labor Movement

• With Kayla Blado, President of the Nonprofit Employee and Media Relations Director at EPI
• Watch on YouTube

America’s racist economy

• With Valerie Wilson, director of EPI’s Program on Race, Ethnicity, and the Economy (PREE)
• Watch on YouTube

Reimagining the American dream

• With Chris Lu, former deputy secretary of labor under President Barack Obama, University of Virginia Miller Center fellow
• Watch on YouTube

Building worker power

• With Heidi Shierholz, EPI director of policy
• Watch on YouTube

Killing U.S. manufacturing is a policy choice

• With Mickey Ray Williams, Firestone plant worker in Gadsden, Alabama, and Rob Scott, EPI director of trade and manufacturing policy research
• Watch on YouTube

 Uber and the gig economy fallacy

• With driver and activist Sergio Avedian and EPI Distinguished Fellow Larry Mishel
• Watch on YouTube

I want to see myself in the data

• With Rhonda Sharpe, director of the Women’s Institute for Science, Equity and Race
• Watch on YouTube

Updated Feb. 8, 2021

Introduction

Nearly all immigrants, refugees, and asylum-seekers join the workforce after entering the United States, but a portion of our immigration system is intended to bring people here expressly for work. Within that complex employment-based system, the majority of migrants come through temporary, precarious pathways—known as temporary work visa programs—that provide employers with millions of on-demand workers who have limited rights, and whose needs and realities are not well understood, even by mainstream immigration advocates.

While temporary work visa programs represent a major component of the U.S. immigration system, little is known about them compared with other aspects of the system that garner more public attention. Nonetheless, work visa programs have played an outsized role in political and policy debates about how to reform the immigration system in the past, and likely will again.

Temporary work visa programs are an instrument ultimately used to deliver migrant workers to employers, but without having to afford them equal rights, dignity, or the opportunity to integrate and participate in political life. While such programs may serve as important pathways for migrants to come to the United States, the numerous programmatic flaws that undermine labor standards and leave migrant workers vulnerable to abuses—and even human trafficking—clearly demonstrate a need for dramatic improvements.

This is not news; migrant worker advocates, government auditors, and the media have identified these flaws across U.S. temporary work visa programs for decades. Most of the workers who participate in the programs will never have a chance to become lawful permanent residents or naturalized citizens, despite spending months, and in many cases, years, working in the United States. The COVID-19 pandemic and the national emergency that was declared on March 13, 2020,1 along with the inadequacy of the federal government’s response, have only exacerbated the challenges migrant workers face while employed through temporary work visa programs.

Despite the popular narrative that President Trump’s administration has instituted a so-called immigration crackdown on all pathways into the United States, temporary work visa programs have been a clear exception. Even before the pandemic began, important immigration pathways that can lead to permanent residence and citizenship had been slashed—and humanitarian pathways for asylees and refugees in particular had already been reduced to historic lows. But, at the same time, data show that temporary work visa programs were 13% larger in 2019 than during the last year of the Obama administration. Even the temporary work visa “ban” issued in June 2020 in retrospect looks to be mostly symbolic—a political tactic to blame migrants for high unemployment and the economic collapse that resulted from the COVID-19 pandemic. This is a dangerous trajectory away from welcoming immigrants as persons who have equal rights and who can settle in the United States permanently and toward using the immigration system mostly to appease the desire employers have for more indentured and disposable migrant workers.

Labor migration pathways can and should be reformed to comport with universal human and labor rights standards. While many major improvements to temporary work visa programs can be accomplished by the executive branch through regulations, the reality remains that the most transformative and lasting solutions will require congressional action. An added benefit of these more durable solutions is that they will set a useful baseline of protections for temporary migrant workers, both in normal times and during emergencies like pandemics. The protracted period of high unemployment the United States is likely to be in, in which labor shortages will be rare, offers a moment for policymakers to take stock of the immigration system and implement needed reforms to employment-based pathways. And considering that a record number of temporary migrant workers are employed in the United States—more than 2 million in 2019, with many performing jobs now deemed essential—the need to protect these workers has never been more acute.

This first half of this report provides a brief introduction to the broader political context of temporary work visa programs and their relation to other key immigration reforms; identifies the most common programs along with key elements of each; and explains how these programs operate and identifies some of their most problematic aspects in terms of legal and regulatory frameworks. The latter sections discuss how to reform temporary work visa programs, concluding with a section on some of the specific challenges temporary migrant workers have faced during the COVID-19 pandemic that have exacerbated their already precarious situation.

Time for a new grand bargain: The broader political context of temporary work visa programs and comprehensive immigration reform

While deportations, detentions, worksite raids, and the asylum system garner more headlines, temporary work visa programs play an outsized role in the broader immigration policy debate in the United States. Temporary work visa programs have long been considered one-third of the “three-legged stool” that some politicians, advocates, and commentators think is required to come to an agreement on so-called comprehensive immigration reform (CIR); the other two “legs” are border and interior enforcement, and legalization and a path to citizenship for the unauthorized immigrant population.2

For the last decade and a half at least, the business community has prioritized temporary work visa programs as a necessary component of CIR; without them, they would likely withhold their support for proposed reform legislation. The business community’s main demands include expanding and deregulating existing temporary work visa programs, as well as creating new programs that include minimal bureaucracy and few worker protections. On the other hand, migrant worker advocacy groups, worker organizations, and labor unions have pointed out how temporary work visa programs keep migrants indentured to employers and can be used to undercut wages and labor standards for migrants and similarly situated workers.3 They have pushed instead for additional rights for temporary migrant workers, including pay that is on par with what U.S. workers earn in similar occupations and regions, the freedom to change employers, family unity, and the ability to quickly adjust to lawful permanent resident status.4

Since at least 2006, coming to a political agreement on temporary work visas in the context of CIR negotiations has been almost impossible. Sen. Chuck Schumer (D-N.Y.), who was part of a team of eight senators who drafted CIR legislation in 2013, noted at the time that “this issue has always been the deal breaker on immigration reform”5; similar comments have been made by legislators and key staffers on Capitol Hill. What’s clear is that until major stakeholders and lawmakers come to a consensus on temporary work visa programs, legislation that includes other important immigration reforms—such as legalization and a path to citizenship for the unauthorized immigrant population—will continue to face significant hurdles before it can become law.

But there is plenty of evidence that advocates and reformers are ready to move beyond the previous trade-offs in immigration that involve assenting to additional border security and interior enforcement measures in order to achieve key reforms like legalization for the 11 million unauthorized immigrants currently in the United States and a clearing of the backlogs of applications for permanent immigrant visas (commonly referred to as “green cards”). Just as that compromise involving enforcement is being reexamined by progressive activists and the immigrants’ rights movement,6 the labor migration aspect of the CIR grand compromise should be reimagined as well. In fact, the Biden administration has already signaled that they support this approach as well, by releasing an immigration reform plan on Inauguration Day that proposes to legalize the unauthorized immigrant population without including new draconian enforcement measures or new and expanded temporary work visa programs as a trade-off.7

The business community meanwhile continues to demand large and deregulated flows of new migrant workers with limited rights in exchange for legalization—in other words, a path to citizenship for the workers here, but no path and no rights for the millions of workers who will arrive in the future—but that trade-off is inherently unjust. Immigration reformers must dare to imagine a new grand bargain, one in which all immigrant communities are respected and protected and all migrant workers have equal rights and a path to becoming permanent residents and citizens. The old ways of thinking and previous grand bargains have clearly failed to translate into victories for immigrants, and actors like the business community have repeatedly proven unwilling or unable to deliver votes in Congress from immigration skeptics when it was time to vote on the previous iterations of CIR legislation that included more immigration enforcement and temporary work visa programs.

The basics: What are temporary work visa programs?

One of the main authorized or “legal” pathways for U.S. employers that wish to hire migrant workers or for migrants who want to work in the United States lawfully is via “nonimmigrant” visas that authorize temporary employment. In the United States, employers almost exclusively control and drive the process, by deciding to recruit and hire employees through temporary work visa programs. Workers who participate in those programs are known as temporary migrant workers, or “guestworkers”—defined as persons employed away from their home countries in temporary labor migration programs. The programs themselves are often referred to as circular or “guest” worker programs, or temporary work visa programs.8 Temporary and home can be defined in different ways, with “temporary” ranging from several months to several years, and “home” usually meaning the worker’s country of birth or citizenship.9 All temporary work visa programs require migrant workers to return to their home countries when their visa expires; workers can remain legally in the United States only if they obtain another temporary visa or lawful permanent resident status.

The most common argument for using temporary work visa programs to facilitate migration is that they help employers fill vacant jobs, especially when employers assert there is a shortage of U.S. workers, in other words, to fill labor shortages. Other major rationales include (1) to facilitate youth exchange programs and admit foreign students (in both cases, the migrants are usually permitted to work); (2) to allow intracorporate transfers (sometimes called intracompany transfers), meaning that employees of multinational companies move from a branch or office of a company to another branch or office of the same company in a different country; (3) to fulfill trade agreement provisions, such as those included in agreements like the North American Free Trade Agreement; (4) to facilitate foreign investment in countries of destination; (5) to manage migration that would otherwise be inevitable—for example, as the result of geopolitical changes; and (6) to allow for cross-border commuting.10

According to the Congressional Research Service, “there are 24 major nonimmigrant visa categories, which are commonly referred to by the letter and numeral that denote their subsection in the Immigration and Nationality Act (INA)”11; over the past few years, between 9 million and 11 million total nonimmigrant visas have been issued. While the vast majority of these were visitor visas that do not authorize employment, nevertheless hundreds of thousands of new nonimmigrant visas in an alphabet soup of temporary work visa programs have been issued to migrant workers or renewed; in addition, the United States has approved work permits to nonimmigrants in visa classifications that do not automatically authorize employment.

Some work visa programs have an annual numerical limitation. For example, the H-2B visa is capped at 66,000 per year; the H-1B visa is capped at 85,000 for the private sector—although it also allows an unlimited number not subject to the annual cap for certain employers.12 However, most work visa programs do not have an annual numerical limit. Each visa program has a different duration of stay associated with it, as well as individual rules about whether and how it can be renewed. For example, H-2A visas for temporary and seasonal agricultural occupations are valid for up to one year, depending on the duration of the job, but can sometimes be renewed, while H-1B visas for occupations that require a college degree may be valid for up to three years, renewable once for a total of six years, and L-1 visas for intracompany transferees may last up to five years for a position that requires specialized knowledge about the employer, or seven years if the worker is a manager or executive.

The Pew Research Center has estimated that approximately 5% of the total foreign-born population are temporarily residing in the United States with nonimmigrant visas.13 Although good data are lacking from the U.S. government on the exact number of nonimmigrant residents who are employed, and in which visa programs, we estimate that more than 2 million temporary migrant workers were employed in 2019, accounting for 1.2% of the U.S. labor force (see discussion in the following section).14

The most common temporary work visa programs in the United States are listed and described in Table 1 and Table 2. Table 1 lists the most common temporary work visas, along with a general description and examples of typical occupations under each (the list of occupations is not meant to be exhaustive). Table 2 lists the same temporary work visas, but with the corresponding annual numerical limit (where applicable) and the number of new visas issued or new petitions approved or initial employment authorization documents (EADs) that were approved by U.S. Citizenship and Immigration Services (USCIS) in fiscal 2019,15 as well as the period of stay that each visa authorizes. It is important to note that these represent new temporary migrant workers in 2019, not the total population of workers, which is usually larger due to visa and EAD renewals (the total population is discussed later). For example, Table 2 shows that 139,000 H-1B petitions for initial employment were issued in 2019, but USCIS recently reported that the total population of H-1B workers in the United States in 2019 was 583,000.16

Table 1

Table 2

The numbers in context: Temporary work visa programs grew under Trump, while permanent pathways shrunk

As noted above, despite the popular narrative that the Trump administration instituted an “immigration crackdown” on all pathways into the United States, temporary work visa programs have been a clear exception. Other, permanent immigration pathways that can lead to citizenship were slashed—even before the pandemic began—including the number of refugees admitted being reduced to a historic low and asylum being severely restricted through new regulations—but this has not been the case with temporary work visa programs. This section provides a brief look at the relevant numbers of permanent immigrant visas and temporary work visas in order to understand them in relation to each other.

The main factor impacting the issuance of both permanent and temporary visas since the COVID-19 pandemic has been the slowdown and shutdown of consular processing for visas around the world, a reality likely to continue to impact most migration pathways for at least a significant part of 2021, if not the entire year. There were also two presidential proclamations issued by Trump in 2020 that would suspend or “ban” the issuance of certain temporary work visas and permanent immigrant visas, and which are set to expire on March 31, 2021. It remains a possibility that the Biden administration will reverse the two presidential proclamations before they expire, but as of the time of publication, both were still in force.

While the ban on permanent immigrant visas (issued in April 2020) will continue to have a significant impact until it expires or is repealed even if consular processing resumes at normal levels—as discussed in this section—it appears that the June 2020 ban on temporary work visas will end up being mostly symbolic and a political tactic. In any case, the shift to more temporary work visas and fewer permanent immigrant visas is a significant and dangerous trajectory away from welcoming immigrants who would be granted equal rights and the ability to settle in the United States permanently; it reflects an immigration system used mainly to appease the business community’s demands for more migrant workers who are indentured to them and disposable.

The number of temporary migrant workers increased during the Trump administration

Table 3 shows new estimates of the number of temporary migrant workers employed in 2016 and in 2019, based on an updated version of the methodology devised by Costa and Rosenbaum.17 It reveals that the number of temporary migrant workers employed during 2019 was nearly 2.1 million—over 237,000 more than during the last year of the Obama administration, or a 13% increase. In total these workers represented 1.2% of the U.S. labor market in 2019. Much of the increase was driven by growth in the visa programs for low-wage jobs—H-2A, H-2B, and J-1—but also by growth in a number of the visa programs for migrant workers who normally possess at least a college degree (or are required to), incuding H-1B visas (for information technology jobs), the Optional Practical Training program for foreign graduates with F-1 visas, L-1 visas for intracompany transferees, and O-1 and O-2 visas for persons with extraordinary abilities.

Table 3

Growth in temporary work visa programs is part of a long-term trend

While temporary work visa programs expanded during the Trump administration, the growth of the programs represented a continuing long-term trend dating back more than 30 years. Figure A shows the number of new visas issued in 36 nonimmigrant visa classifications that represent U.S. temporary work visa programs, or programs that allow spouses and children to accompany the principal temporary migrant worker, between 1987 and 2019.18 For comparison, the figure also shows the number of permanent immigrant visas issued in the employment-based (EB) green card preferences—i.e., green cards issued for the purpose of work, which allow migrants to adjust to become lawful permanent residents—over the same period. The dotted line in Figure A shows the point at which the last major immigration reform was passed in the United States, in November 1990, when the Immigration Act of 1990 (commonly referred to as IMMACT90) was enacted.

Figure A

The major trends that have occurred since IMMACT90’s enactment were that issuances of EB green cards increased slowly until stabilizing around the new annual cap for EB green cards of 140,000 (created by IMMACT90), while the number of temporary work visas issued increased exponentially during the same period. In 2019, the number of EB green cards issued represented only 8.6% of all new work visas issued to migrant workers and their families (temporary plus EB green cards). These data show that the labor migration pathways available to migrant workers and their families in the U.S. immigration system are almost exclusively temporary.19

The difference under Trump was that the steady growth in temporary work visa programs occurred while the Trump administration simultaneously, and successfully, made unprecedented moves to slash virtually every permanent immigrant pathway available in the U.S. system.

The refugee and asylum pathways were diminished under Trump

While temporary work visa programs grew during the Trump administration, the number of refugees admitted dwindled to its lowest total ever—in fact, the lowest since the passage of the Refugee Act of 1980, the law that created the United States’ modern-day regime for refugee resettlement. Figure B shows that in 2016, the last year of the Obama administration, nearly 85,000 refugees were admitted, but in 2020—when international aid agencies were warning that the need for refugee resettlement is greater than ever20—just under 12,000 were admitted by the Trump administration, a reduction of 86%.

Figure B

When it comes to the U.S. asylum system, the number of approved asylum claims in 2019 reached the highest level since 1990, at 46,508.21 However, this number is misleading because first, it was due in part to the record number of new claims in recent years combined with a backlog of claims initiated during the Obama administration. And second, while the number of claims approved has increased, the denial rate for asylum claims has risen sharply. Finally, most experts agree that the policies enacted by the Trump administration on asylum, along with the Board of Immigration Appeals decisions made by Trump’s Department of Justice that relate to asylum and are precedent-setting, served to greatly restrict access to the asylum process for persons hoping to become new applicants for asylum at the U.S. border or for those applying for asylum from within the United States—and will ultimately lead to many fewer new asylum claims and claims that are ultimately approved.22

For example, one of those policies, the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” policy, led to nearly 68,000 Mexican migrants being sent back to Mexico to await their asylum hearings as of September 2020.23 (The Biden administration ordered on January 20, 2021, that no new migrants be enrolled in the MPP program, while directing current enrollees to “remain where they are.”24) In March 2020, the Centers for Disease Control and Prevention implemented an emergency policy under Title 42 of the Public Health Service Act to seal the U.S. border, ostensibly justified by the COVID-19 pandemic, which led to 150,000 migrants—many of them asylum-seekers—being rejected or expelled from the United States without the usual due process the law would have provided for them.25 (As of the time of publication, the Biden administration had not rescinded the policy.) And for the asylum applicants already in the United States having their claims adjudicated, the Trump administration promulgated two regulations, one that doubled the wait time required before applicants can obtain employment authorization documents permitting them to work lawfully, and another that removed the requirement that USCIS process their work permit applications within 30 days, further increasing wait times and risking the possibility that the government will not issue them a work permit at all. Numerous other policies detrimental to asylum access have been identified by advocates and researchers.26

The number of green cards was on the decline under Trump before the pandemic and was impacted further by the slowdown in consular processing and the immigrant visa ban

By the end of fiscal year 2019, the number of permanent immigrant visas that lead to lawful permanent residence (i.e., green cards) had been on a steady decline since President Trump took office. Figure C shows that in the last year of the Obama administration (fiscal 2016), the total number of green cards issued at U.S. embassies and consulates abroad was nearly 618,000; in 2019, the number had dropped to 462,500, a decline of 25% compared with the last year of the Obama administration.27 After the start of the COVID-19 pandemic, most U.S. consulates abroad that issued both nonimmigrant visas and green cards were closed or operating at a limited capacity, resulting in very few visas of any type being issued, especially between April and August 2020, leading to a further decline of the annual total. In fiscal 2020, which ended on Sept. 30, 2020, a total of only 250,500 green cards were issued abroad.28

Figure C

Approximately one month after the pandemic was underway, President Trump declared a national emergency and tweeted that he would sign an executive order “to temporarily suspend immigration into the United States.”29 Two days later, the White House issued a presidential proclamation titled “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak.”30 This proclamation directs the government to refrain from issuing immigrant visas abroad in the family-based, employment-based, and Diversity Visa31 green card preference categories. The proclamation is for all intents and purposes an immigrant visa ban, with the potential to reduce by hundreds of thousands the number of migrants who can become lawful permanent residents (LPRs) by obtaining green cards if it were to remain in place for a substantial period of time after normal consular processing resumes.

The proclamation establishing the immigrant visa ban was initially valid for 60 days, but was extended until the end of 2020, and was then extended again on Dec. 31, 2020, for an additional three months, meaning it will expire on March 31, 2021.32 Unless the Biden administration repeals the proclamation, it will have been in place for a total of 11 months when it expires at the end of March. As of the time of publication, the Biden administration had not reversed the immigrant visa ban, but it was reported on January 28 that the administration does plan to repeal it.33

Table 4 shows what the long-term impact of the immigrant visa ban could have been if it had remained in place for an entire year during a period when consular processing is at normal levels. Of the 1 million total green cards issued during all of 2019, there were 316,000 green cards issued under the categories suspended by Trump’s proclamation, meaning that if the presidential proclamation remained in force for one full year at normal immigration levels, it would result in a reduction of 316,000 green cards, or 31%, nearly one-third, of the 1 million green cards issued in 2019.34

Table 4

As noted, Trump’s green card suspension came at a time when nearly all forms of temporary and permanent immigration to the United States had already been stopped or suspended because of COVID-19-related border closures and travel restrictions, as well as closures of U.S. consulates around the world that resulted in limited availability of visa-processing services. As a result and considering the Biden administration’s intent to repeal it or allow it to expire on March 31, 2020, the immigrant visa ban’s impact will be minimized in the short term. But as consulates abroad begin to reopen, the impact has already been felt by aspiring immigrants and their family members. (One exception is that Diversity Visas have resumed being processed after an injunction was issued by a federal court.35)

Trump’s temporary work visa ban may have reduced the number of new temporary migrant workers, but waivers, exemptions, and litigation have mitigated the impact

On June 22, 2020, President Trump issued another presidential proclamation titled “Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak,”36 halting the issuance of certain major categories of nonimmigrant, temporary work visas until the end of 2020—in other words, a ban on temporary work visas. This proclamation originally suspended the issuance of new temporary work visas to migrants and their family members, if they were applying from abroad, until Dec. 31, 2020, but (along with the immigrant visa ban) the work visa suspension was extended until March 31, 2021,37 by the Trump administration just before President Biden was inaugurated. As of the time of publication, the Biden administration had not yet reversed the temporary work visa ban, but it was reported on January 28 that the administration does have plans to repeal it along with the immigrant visa ban.38

The proclamation establishing the temporary work visa ban does not suspend the issuance of visa statuses for those applying from within the United States, only those located abroad. The impacted visa classifications are the H-1B for occupations requiring a college degree, H-2B for low-wage jobs outside of agriculture, L-1 for intracompany transferees, and some of the major programs that authorize employment in the J-1 Exchange Visitor Program, specifically the J-1 Intern, Trainee, Teacher, Camp Counselor, Au Pair, and Summer Work Travel programs.39 The proclamation did not restrict the issuance of H-2A visas for migrants working in temporary and seasonal agricultural occupations (i.e., farmworkers).

It was perhaps surprising that the temporary work visa ban was issued at all, given the pushback from the business community, but it appeared the Trump administration was being responsive to pressure from anti-immigrant groups, one of its other major constituencies. Media reports at the time of the green card ban noted that the Trump administration had also considered suspending temporary work visas, but that Trump ultimately declined to do so because of “intense pressure from business groups,”40 including technology and agribusiness firms, who reportedly “exploded in anger”41 at the notion that their access to temporary work visas might be suspended or restricted. Nevertheless, when the temporary work visa ban was ultimately issued, the slowdown and shutdown of consular processing for visas around the world meant that there was already a sharp slowdown in the issuance of nonimmigrant visas, and therefore the ban’s impact on the number of visas was going to be negligible, at least at first.

Most of the nonimmigrant visa classifications targeted are primarily issued to applicants at consulates abroad and were therefore suspended by the proclamation; but the H-1B visa is an exception to the rule. In 2019, 60% of new H-1Bs were issued to migrants who were already present in the United States, often on a student visa.42 Therefore, it is reasonable to expect that the H-1B program will be less impacted by the proclamation in terms of a reduction in visas. The language in the proclamation also contains national interest waivers and exceptions for temporary migrant workers whose work will support the food supply chain or serve the national interest by being either critical to defense, law enforcement, diplomacy, or national security; if temporary migrant workers are involved with the provision of COVID-19 medical care or research; or if their work is otherwise necessary to facilitate the economic recovery of the United States. However, those listed exemptions were somewhat broad and ill-defined at the time the proclamation was issued.

Multiple lawsuits were filed soon after the proclamation was issued, seeking to enjoin the implementation of the work visa provisions, as well as challenging the green card suspension.43 As litigation was proceeding, the U.S. State Department issued guidance on Aug. 12, 2020, for consular officers that offered new details and specifications about the jobs and industries covered by the proclamation’s national interest waivers and exemptions and that generally diminished the restrictiveness of the original proclamation.44 One prominent immigration attorney told Bloomberg Law that he thought that the State Department’s Aug. 12 guidance was in direct response to the litigation,45 calling the guidance “a complete walkback” of the proclamation “because [the government’s lawyers] know they’re going to lose the litigation,” further noting that just about every industry would be covered by the new exemptions, and predicting that ultimately “many visa hopefuls stuck outside the U.S. will likely be able to prove they qualify for a national interest waiver to the ban.”46 Two months later, in early October, with respect to litigation brought against the work visa ban by the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, a federal court in San Francisco ruled that the ban would not apply to these plaintiffs or employers that are members of these employer associations (including one cultural exchange visa sponsor). As a result, those associations and their member employers can recruit and hire migrants in any of the suspended visa programs.

The practical impact of Trump’s June 22 proclamation establishing a work visa suspension will ultimately be minimal as a result of the broad waivers and exemptions—thus, in retrospect, the June 22 proclamation looks to be mostly symbolic and a political tactic to blame migrants for high unemployment and the economic collapse that resulted from the COVID-19 pandemic. By far the biggest factor contributing to fewer temporary work visas being issued in 2020 and early 2021 remains the closure of U.S. consulates around the world and the limited availability of visa processing services at consulates.

Temporary migrant workers face unique challenges due to program frameworks

Although they are legally authorized to work, temporary migrant workers are among the most exploited laborers in the U.S. workforce because employer control of their visa status leaves many powerless to defend and uphold their rights. The list below summarizes some of the most problematic aspects of temporary work visa programs.

Illegal recruitment fees and debt bondage are common

Temporary migrant workers can face abuse even before arriving in the United States: Many are required to pay exorbitant fees to labor recruiters to secure U.S. employment opportunities, even though such fees are usually illegal.47 Those fees leave them indebted to recruiters or third-party lenders, which can result in a form of debt bondage.48 (Even migrants recruited to work with employment-based green cards have ended up paying exorbitant fees, as seen in one case reported in ProPublica, in which a Korean worker paid $26,000 to a recruitment agency to work in a poultry processing plant.49) After arriving in the United States, temporary migrant workers may find out the jobs they were promised don’t exist.50 And in a number of cases, temporary migrant workers have become victims of human trafficking—with some being forced to work in the sex industry.51

Contrary to popular belief, it’s not just farmworkers and other temporary migrant workers in low-wage jobs suffering from the abuses that pervade temporary work visa programs: College-educated workers in computer occupations, as well as teachers and nurses, have been victimized and put in “financial bondage” by shady recruiters and staffing firms that steal wages, forbid workers from switching jobs or taking jobs the recruiters don’t financially benefit from, and file lawsuits against workers if they try to change jobs or quit.52

Temporary work visa programs permit employers to circumvent U.S. anti-discrimination laws and segregate the workforce

While U.S. anti-discrimination laws are intended to make workplaces fairer and more equal by prohibiting discrimination in hiring and employment on the basis of factors like race, color, sex, religion, and national origin at the point of hire—in practice they don’t apply to temporary migrant workers who are recruited abroad. Because workers are being selected by recruiters in countries of origin, outside of U.S. jurisdiction, employers have the ability to reclassify entire sectors of the U.S. workforce by race, gender, national origin, and age through temporary work visa programs.53

This occurs through recruiters and employers limiting access to jobs made available to workers based on employer preferences for national origin, gender, and age, allowing them to sort workers into occupations and visa programs based on racialized and gendered notions of work. Thanks to temporary work visa programs, an employer may select an entire workforce composed of a single nationality, gender, or age group—for example, selecting only young Mexican men for farm jobs with H-2A visas, or young Indian men to work as computer programmers with H-1B visas, or young women from Eastern Europe for work in restaurants and amusement parks with J-1 visas. The large shares of visas issued to specific countries of origin, and the limited demographic data available, provide evidence that this is occurring,54 and websites exist that allow employers to browse the profiles of workers on employment agency websites that advertise workers like commodities.55

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. They can do this by refusing to hire workers whom they think will be likely to complain, and retaliating against workers who do speak up or complain—for instance, by firing them and effectively forcing them to leave the country, or by threatening to blacklist them from being hired for future job opportunities.

The visa status of temporary migrant workers is usually tied to their employer, thus chilling labor rights, preventing mobility, and enabling employer lawbreaking

The many temporary migrant workers who are in debt after paying recruitment fees are anxious to earn enough to pay back what they owe and hopefully make a profit, and are thus unlikely to speak up at work when things go wrong on the job. But even those who aren’t caught in the debt trap are often subject to exploitation once they are working in the United States. Like unauthorized immigrants, temporary migrant workers have good reason to fear retaliation and deportation if they speak up about wage theft, workplace abuses, or other working conditions like substandard health and safety procedures on the job—not because they don’t have a valid immigration status, but because their visas are almost always tied to one employer that owns and controls their visa status. That visa status is what determines the worker’s right to remain in the country; if they lose their job, they lose their visa and become deportable. This arrangement results in a form of indentured servitude.56 Further, as noted in the previous section, employers can punish temporary migrant workers for speaking out by not rehiring them the following year or by telling recruiters in countries of origin that they shouldn’t be hired for other job opportunities in the United States (effectively blacklisting them).57

The specter of retaliation makes it understandably difficult for temporary migrant workers to complain to their employers and to government agencies about unpaid wages and substandard working conditions. Private lawsuits against employers who break the law are also an unrealistic avenue for enforcing rights, for two reasons: First, most temporary migrant workers are not eligible for federally funded legal services under U.S. law, and second, those who have been fired are unlikely to have a valid immigration status permitting them to stay in the United States long enough to pursue their claims in court. Because of the conditions created by tying workers to a single employer through their visa status, temporary work visa programs have been dubbed by some as “close to slavery” or “the new American slavery,” and government auditors have noted that increased protections are needed for temporary migrant workers.58

While temporary migrant workers generally cannot easily change jobs or employers, the terms and conditions of some nonimmigrant visas for college-educated workers actually do permit them to change employers—in particular the J-1, F-1 Optional Practical Training (OPT) program, H-1B, and TN visas allow workers to change employers—although the rules vary even among these visas. In the J-1 visa, which is managed by the State Department, there are sponsor organizations that partner with the State Department to manage oversight and compliance. Those private organizations act as middlemen between the J-1 workers and U.S. employers, and ultimately must sign off on a job change for a J-1 worker, rendering it difficult in practice. In the F-1/OPT context, universities play a key role and ultimately approve employment for OPT workers but exercise little oversight, sometimes resulting in abuses.59

It is important to stress that temporary migrant workers in these four visa programs that allow for some portability have nevertheless been subjected to substandard workplace conditions, and been the victims of fraud and even trafficking, which suggests that the ability to change employers, on its own, is not a panacea for protecting temporary migrant workers. Allowing temporary migrant workers to change employers is something that some proponents of expanded temporary work visa programs—like researchers from the Center for Global Development and the Cato Institute60—have proposed in lieu of additional labor standards enforcement. But the legal ability to change jobs does not alone provide protection from exploitation; while this is a pervasive assumption in basic economics, it is a generally incorrect assumption that is finally being called into question.61 The ability to change employers should be a basic fundamental freedom for workers, not an excuse to abandon labor standards enforcement.

Temporary migrant workers are often legally underpaid

There is abundant evidence that the laws and regulations governing major temporary work visa programs—such as H-2B and H-1B—permit employers to pay their temporary migrant workers much less than the local average wage for the jobs they fill.62 For example, in the H-1B program—which has a prevailing wage rule that is intended to protect local wage standards—60% of all H-1B jobs certified by the U.S. Department of Labor (DOL) in 2019 were certified at a wage that was below the local average wage for the specific occupation.63 However, most work visa programs have no minimum or prevailing wage rules at all—perhaps that’s why some employers have believed they could get away with vastly underpaying their temporary migrant workers, as one Silicon Valley technology company in Fremont, California, did by paying less than $2 an hour to skilled migrant workers from India on L-1 visas who were working up to 122 hours per week installing computers.64

While employers are still required by law to pay temporary migrant workers at least the state or federal minimum wage, that’s often far less than the true market rate, or the local average wage, for the occupation in which they are employed. The company employing the L-1 workers in Fremont who were paid less than $2 an hour was cited for violations by DOL because California law required that they be paid no less than $8 an hour (the state minimum wage at the time), plus time-and-a-half for overtime. But the average wage in Fremont for the job they were doing—installing computers—was $20 per hour at the time according to DOL data, and if they were also configuring the computers for the company’s network, they deserved to be paid $44 per hour.65 In the end, the company was required to pay back wages of $40,000 plus a fine of $3,500 “because of the willful nature of the violations”—a slap on the wrist considering the egregiousness of the wage theft, and hardly a disincentive against future violations.66

Considering how the wage rules or lack thereof in these programs operate, and the situation workers are left in, perhaps it is no surprise there is evidence that temporary migrant workers in low-wage jobs earn approximately the same wages, on average, that unauthorized immigrant workers do for similar jobs, despite the fact that unauthorized workers have virtually no rights in practice.67 In other words, these temporary migrant workers do not have any financial incentive to work legally through visa programs since there is no wage premium to be gained for it—and, in fact, authorized temporary migrant workers can end up worse off economically than unauthorized workers because of the debts they incur through fees paid to recruiters, and considering the fact that they may have no family or social networks to rely on. This could ultimately result in incentivizing workers to migrate without authorization, rather than using available legal channels.

In essence, these visa programs operate in practice to create a labor market monopsony for employers—awarding employers greater leverage over their workers68—and growing research has shown that even modest amounts of employer monopsony power are utterly corrosive to workers’ ability to bargain for better wages.69

Oversight is lacking, leaving temporary migrant workers unprotected

There is very little oversight of temporary work visa programs by DOL. In fact, most of the programs have no rules in place at all to protect temporary migrant workers after they arrive in the United States. Where such rules are in place—namely in the H-1B, H-2A, and H-2B programs—enforcement is inadequate to protect workers, and companies that are frequent and extreme violators of the rules are often allowed to continue hiring through visa programs with impunity.70 Part of the problem lies with DOL’s weak legal mandate, but is also due to the reality of DOL being woefully underfunded and understaffed. To put that into context, consider that in 2018, the budget for labor standards enforcement across all federal U.S. agencies was only $2 billion, while spending on immigration enforcement in 2018 was $24 billion, an astonishing 11 times greater than spending to enforce labor standards—despite the mandate labor agencies have to protect 146 million workers employed at 10 million workplaces.71 Consider as well that the Wage and Hour Division—the division at DOL in charge of enforcement in the H visa programs—had fewer investigators on staff in 2019 than it did almost five decades earlier, which explains the agency’s limited capacity to conduct investigations.72

Most temporary migrant workers cannot transition to a permanent immigrant status; in the few programs that offer a pathway, it is controlled by employers

None of the U.S. temporary work visa programs provide for an automatic path to lawful permanent residence—i.e., obtaining a “green card”—which would also allow them to eventually qualify for naturalization (citizenship) after a few years, nor do they allow for a quick and direct path for temporary migrant workers to apply for green cards themselves. As a result, many temporary migrant workers return to the United States every year for decades in a nonimmigrant status, often for six to nearly 12 months at a time—rendering them permanently temporary in many respects—which also impacts their ability to integrate into the United States and prevents them from earning the higher wages associated with permanent residence and citizenship.73

Only two temporary work visa programs allow for a relatively straightforward application process for green cards, the H-1B and L-1 visas. But in those programs, it is the employer who decides whether the worker should get a green card; the employer also controls the green card application and process. This creates an imbalance of power between temporary migrant workers and their employers that allows employers to exert undue influence over the lives of their workers with visas, and disincentivizes workers from speaking up about workplace abuses, as speaking up could jeopardize their ability to remain in the United States.

Even when employers decide to apply for green cards for the temporary migrant workers who are eligible, workers can end up in what’s known as the green card “backlog,” waiting years and even decades for a green card to become available to them. The Congressional Research Service has estimated that approximately 1 million temporary migrant workers are in the green card backlog.74 During their time in the backlog, workers can experience an employment relationship that is ripe for exploitation, because workers are unable to switch easily between jobs or employers by virtue of their prolonged temporary status.

Many temporary migrant workers are separated from their families while employed in the United States

While many temporary work visa programs technically allow migrant workers to bring their spouses and children, in most cases U.S. visa rules do not authorize spouses to work—making it difficult, if not impossible, for spouses and children to accompany workers because of the high cost of living and low pay in work visa programs. Taking into consideration that so many temporary migrant workers return every year for decades, workers and their family members can end up facing prolonged separation and trauma—children may grow up hardly knowing, or ever seeing, one or both of their parents.

Recommendations for reforming temporary work visa programs

The bargaining power of workers is undercut when more than 2 million temporary migrant workers—1.2% of the U.S. labor force—are underpaid by employers and cannot safely complain to DOL or sue employers that exploit them because their visa status is owned and controlled by their employer. To remedy this, a number of key reforms have been proposed and should be considered, both to protect workers and also to modernize the U.S. system for labor migration. These reforms would help develop a strong evidence base for migration policymaking that is nimble enough to respond to the demands of a modern economy with needs that are constantly changing.

The protracted period of high unemployment the United States appears to be in, in which labor shortages will be rare, offers a moment for policymakers to take stock of the immigration system and implement needed reforms without the usual employer pressure to increase numbers and water down protections that occurs during periods of low unemployment. Given that a record number of temporary migrant workers are now employed in the United States at a time of greatly elevated health and safety risks, the need to protect these workers has never been more acute.

The White House can enact limited reforms through the regulatory process, but Congress needs to pass legislation for transformative and lasting reforms

While some improvements to temporary work visa programs can be accomplished by the executive branch through regulations—most notably by ensuring that migrant workers are paid fairly by improving prevailing wage rules in some visa programs and creating new wage rules in the programs that lack them—the reality remains that the most transformative and lasting solutions will require congressional action. An added benefit of these more durable solutions is that they will set a useful baseline of protections for temporary migrant workers, both in normal times and during emergencies like pandemics. In addition, improving labor standards for temporary migrant workers will lift the floor for all workers, which will increase bargaining power and raise wages.

Congress should reform temporary work visa programs by passing laws to update, simplify, and standardize the rules for all of them, in ways that make them consistent with basic human and labor rights. The following sections briefly discuss the key reforms that are necessary.

Congress should regulate foreign labor recruiters to protect migrant workers

Congress could begin its reforms by requiring employers to recruit and offer jobs to qualified U.S. workers before being allowed to recruit workers abroad, ensuring transparency in the recruitment process abroad for potential migrant workers who may participate in visa programs, and requiring that employers be held accountable for the actions of labor recruiters abroad.

There is at least one example of legislation that could serve as a starting point for achieving the reforms necessary to ensure transparency and accountability in recruitment for migrants who are abroad, although it would need to be improved upon. The comprehensive immigration reform legislation that passed the Senate in 2013 contained a section on foreign labor recruitment, which, if it had become law, would have created a new program requiring foreign labor contractors who recruit migrant workers to register with DOL and to disclose certain information about recruited workers, employers, subcontractors, and job terms, and to post a bond.75 The provisions would have also prohibited discriminating or retaliating against workers, banned the charging of recruitment fees to workers, and implemented a new complaint and investigation process along with administrative fines and a private right of action, allowing either the government or an aggrieved person to bring a civil action to enforce the rights of migrant workers.

Congress should require that all temporary migrant workers are paid fairly according to U.S. wage standards

And next, in cases where employers hire migrant workers after proving they were unable to recruit U.S. workers at prevailing wages—in order to preserve U.S. wage standards and ensure that temporary migrant workers are paid a fair wage that is commensurate with the value of their labor—the law should require that all workers with temporary visas are paid no less than the local average or median wage for their job.

There are some key legislative proposals that would achieve this for particular visa programs. In terms of jobs that require at least a college degree, the H-1B and L-1 Visa Reform Act, a bipartisan proposal originally introduced by Sens. Richard Durbin (D-Ill.) and Chuck Grassley (R-Iowa), would reform the H-1B program by requiring employers to first recruit U.S. workers for open positions, and then require employers to pay H-1B workers at least the local median wage, and would provide DOL with additional authority to ensure compliance with the program.76 Employers would also be required to pay temporary migrant workers with L-1 visas the local median wage (the L-1 visa program currently has no wage rule). The bill is co-sponsored by Democratic Sens. Richard Blumenthal of Connecticut, Sherrod Brown of Ohio, and Bernie Sanders of Vermont, and a bipartisan version has been introduced in the House of Representatives, co-sponsored by Democratic Reps. Bill Pascrell of New Jersey and Ro Khanna of California.77

Another piece of legislation, proposed by Sens. Durbin, Blumenthal, and Amy Klobuchar (D-Minn.) and former Senator (now Vice President) Kamala Harris, would facilitate the fair recruitment of recent foreign graduates of U.S. universities with degrees in the science, technology, engineering, and math (STEM) fields. The Keep STEM Talent Act would allow STEM graduates to obtain green cards—and bypass years of being indentured on temporary visas—if employers simply go through the DOL labor certification process and offer to pay the fair market wage.78

In terms of temporary work visas for lower-wage jobs, Rep. Joaquin Castro (D-Texas) recently introduced legislation to reform and improve the H-2B visa—the main program used to recruit workers into lower-wage jobs outside of agriculture (for example in construction, landscaping, restaurants, seafood processing, and hospitality). Rep. Castro’s Seasonal Worker Solidarity Act would, among other things, require that employers pay H-2B workers no less than the local average wage for the occupation, as well as eliminate loopholes that employers use to circumvent paying fair wages in the current H-2B program.79

Congress should prohibit temporary migrant workers from being indentured to their employers through their visa status and allow workers to self-petition for permanent residence

Another priority for Congress would be to pass a law firmly establishing that temporary migrant workers will no longer be tied and indentured to their employers through their visa status. Congress should also limit the time that temporary migrant workers are in a temporary/nonimmigrant status by allowing them to self-petition for permanent residence after a short provisional period,80 but preferably no longer than 18 months. The aforementioned Seasonal Worker Solidarity Act, for example, would allow H-2B workers to change employers and to self-petition for permanent residence after accruing 18 months of work in H-2B status.

Congress should appropriate more funding to enforce labor standards and bar employers from hiring through visa programs if they violate labor and employment laws

Because of how perpetually underfunded it has been, Congress should appropriate much more funding to DOL to enforce this updated work visa system81 and strengthen the department’s mandates to conduct adequate oversight, including random audits of employers, and pass laws permanently banning any employer from hiring through temporary work visa programs if that employer has violated labor and employment laws. Investigative news reports have revealed that even when DOL sanctions an employer for labor violations committed against temporary migrant workers, the employers are often required to pay only nominal fines and are allowed to continue hiring new workers through visa programs.82

Congress should pass the POWER Act to protect workers of all immigration statuses from the threat of employer retaliation and deportation

Congress should also prioritize reintroduction and passage of the Protect Our Workers from Exploitation and Retaliation (POWER) Act, perhaps the single most important piece of legislation aimed at protecting workers of all immigration statuses from the threat of employer retaliation and deportation. The POWER Act was last introduced in 2018 by Rep. Judy Chu (D-Calif.) and Sen. Robert Menendez (D-N.J.) and is supported by various unions and migrant worker advocacy organizations. The POWER Act would expand access to humanitarian “U” visas for migrant workers who report workplace violations (U visas are currently available to victims of certain qualifying crimes who are cooperating in a related investigation or prosecution),83 increase the number of U visas available, and extend eligibility to more labor-related crimes.

The POWER Act would also strengthen the investigative powers of labor standards enforcement agencies. And it would permit postponing the deportation of migrant workers who file a bona fide workplace claim or are a material witness to one, so they can remain in the country to pursue the claim; they would also be eligible for employment authorization so they can work during that time.84

Congress should improve transparency in temporary work visa programs to protect workers and aid anti-trafficking efforts

While the reforms discussed in the preceding sections would go a long way toward protecting temporary migrant workers, other systemic reforms are also urgently needed to more broadly protect labor standards and modernize the immigration system.

For example, there should be much more transparency in the system. Too little is known about how temporary work visa programs are being used, in part because data on visas are collected on paper forms and applications rather than electronically,85 and even most of the digitized information collected is not made public or requires lengthy and costly Freedom of Information Act requests to obtain. Migrant worker advocates have pressed for years for more and better government data and transparency in work visa programs to ensure that migrants are being paid fairly, and that the immigration system is not being co-opted in ways that allow employers to discriminate and segregate the workforce. More data would also serve as a tool that could aid the organizations and advocates who are fighting human trafficking.86 Bipartisan legislation has been introduced to achieve this, most recently the Visa Transparency Anti-Trafficking Act,87 but opposition by employers has caused it to stall.

Congress should create an independent commission on employment-based migration to make the system more flexible and data-driven and depoliticize the adjustment of numerical limits

Last but not least, temporary work visa programs and the U.S. labor migration system writ large must be reformed to be more flexible and data-driven. For example, most numerical limits (i.e., quotas or caps) for permanent and temporary work visas were set by law in 1990 and have not been changed since, despite vast fluctuations in economic conditions. A more rational system would have annual caps that adjust to changing conditions—increasing when necessary to alleviate proven labor shortages and decreasing during economic slowdowns and recessions.

The best proposal to do this is through the creation of an independent, permanent commission on employment-based migration, which would be a high-level body staffed by expert researchers with integrity and technical competence, and who are tasked with studying immigration and the labor market and providing timely and reliable data and analysis to policymakers and the public. The commission could work to develop much better measures of labor market shortages, assessment methodologies, and processes to efficiently adjust migrant worker flows to match employers’ needs while protecting U.S. labor standards.88

Adjusting annual visa caps requires congressional action, which can be contentious, influenced by lobbying and opaque political considerations rather than facts, and too slow to keep up with changing economic conditions. A commission would report regularly to Congress and the president, proposing new quotas on an annual or semi-annual basis, and issue public reports citing the evidence for its recommendations, which would be based on methodologies that are credible and transparent. The commission would consider the many trade-offs inherent in immigration policymaking in its recommendations, and Congress would ultimately decide which policies to adopt or reject. But basing quotas on evidence and data would have the effect of depoliticizing the process of setting numbers and provide an evidence base for decisions that can be inspected by all.

Models for such a commission already exist, both in the United States and abroad. In the United States, for example, it would be difficult to imagine Congress making decisions about trade policy without the advice of the International Trade Commission. Both immigration and trade are vital to the U.S. economy, but Congress cannot be expected to have the relevant expertise to make fully informed decisions about either. In the United Kingdom, the Migration Advisory Committee (MAC) is an independent governmental body that studies labor shortages and makes recommendations to Parliament about when to facilitate more migration and for which occupations. The MAC is staffed with notable economists and labor market experts who study what they call “top-down” labor market indicators, such as growth in wages, employment, and unemployment, and job vacancy data, but MAC staff also interview both employers and unions to get a sense of what’s happening on the ground—what the MAC calls “bottom-up” indicators—which serve to better inform the MAC when crafting its recommendations.89

A number of bipartisan groups and research institutes have called for an independent commission on employment-based migration or some version of it, including The Independent Task Force on Immigration and America’s Future (co-chaired by Lee Hamilton and Spencer Abraham), the Council on Foreign Relations’ Independent Task Force on U.S. Immigration Policy (co-chaired by Jeb Bush and Thomas McLarty III), the Brookings-Duke Immigration Policy Roundtable, the Brookings Institution, the Economic Policy Institute, and the Migration Policy Institute. Versions of a commission have been introduced multiple times in proposed legislation90 and should be considered again, either as a standalone proposal or as an integral component of a comprehensive immigration reform package.

The COVID-19 pandemic has exacerbated the vulnerability of temporary migrant workers and the Trump administration failed to take action to protect them

While the structural issues discussed above are ever-present, the human stakes are higher during the COVID-19 pandemic, and new challenges have arisen or been exacerbated by the nature of the pandemic and the solutions required to slow the spread of the virus. The reality for many temporary migrant workers has become more precarious in light of massive job losses and the shutting down of the U.S. immigration system, along with new visa and travel restrictions. Some new challenges are specific to individual visa programs, because of different rules, procedures, and occupations. The Trump administration, during its managing of the pandemic, also implemented changes to rules and policies—with the clear intention of helping employers—but with little to no regard for the well-being of temporary migrant workers, a fact made evident by the failure of the Trump administration to take any action to protect them. This section discusses a few of the key policy issues and vulnerabilities of temporary migrant workers that have come to light and even worsened during the COVID-19 pandemic.

Emergency measures were taken to secure a steady supply of H-2A farmworkers and to cut their pay, but not to protect them from COVID-19

Since the start of the pandemic, a number of policy changes were made at the federal agency level by the Trump administration to ensure that migrant farmworkers who come to the United States to fill temporary and seasonal jobs on farms through the H-2A visa program could continue to arrive and work to bolster the food supply chain.

One of the key moves was the State Department’s announcement with respect to issuing H-2A visas—on March 17, 2020, the State Department announced it was stopping mandatory in-person interviews for migrants who were applying for H-2A visas for the first time in Mexico as a result of the pandemic.91 Since the in-person interview is a necessary step before H-2A workers can enter and work in the United States, and more than 90% of H-2A workers come from Mexico, this meant that in effect no new H-2A workers would be able to obtain visas and travel to worksites in the United States. The State Department later changed course due to pressure from agribusiness, saying it would process H-2A visas in Mexico and waive the in-person interviews, but only for Mexican applicants who are “returning workers,” meaning they had previously worked in the United States with H-2A visas.92 But a few days later, the State Department updated its policy again, announcing it would waive interviews and process visas for both new H-2A and H-2B workers and returning workers who had been employed in the United States in H-2A status during the previous four years—in part because “the H-2 program is essential to the economy and food security of the United States and is a national security priority.”93

About a month later, a temporary final rule was published by another agency, U.S. Citizenship and Immigration Services (USCIS) in the U.S. Department of Homeland Security, titled Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID–19 National Emergency,94 which permitted farm employers to hire an H-2A worker after the worker completed their current job, whether it was on the same farm or a different one, and that allowed H-2A workers to remain in the United States beyond the usual three-year total maximum allowable period of stay. This new emergency regulation was, as the U.S. Department of Agriculture (USDA) put it, an attempt to protect farmers and ensure the continued flow of America’s food supply.95

Virtually at the same time that multiple federal agencies were touting the importance of temporary migrant farmworkers with H-2A visas to the security of the United States, and changing rules to allow them to continue being recruited and to remain in the United States to work for additional employers, the Trump White House and USDA were devising a plot to reduce the required wage rates paid to H-2A workers, known as the Adverse Effect Wage Rate (AEWR)96—which represents the regional average wage of farmworkers and is intended to protect U.S. wage standards for all farmworkers. This despite the fact that farmworkers and H-2A workers are already paid some of the lowest wage rates in the U.S. labor market.97 National Public Radio (NPR)98 and The Wall Street Journal reported on this scheme, with the Journal noting that the proposal would likely amount to a wage “cut of around $2 to $5 per hour” in some states.99

The Trump administration ultimately decided in early October to lower the AEWR for H-2A workers by ending the USDA’s Agricultural Labor Survey, which is the best source of information on what farmworkers earn, and which DOL uses to set the AEWR.100 The United Farm Workers (UFW) union, the UFW Foundation, and Farmworker Justice, an advocacy group, filed suit in federal court to enjoin USDA from ending the survey, and the court issued a temporary restraining order and preliminary injunction in late October 2020.101 In early November, the Trump DOL then issued a final rule detailing the new AEWR methodology, which would in fact lower wages for most H-2A farmworkers, and by the DOL’s own admission, transfer at least $1.68 billion in wages from farmworkers to employers.102 The United Farm Workers Foundation and Farmworker Justice sued once again to enjoin the new AEWR, and were successful; on Dec. 24, a federal court in California enjoined the DOL’s new AEWR, and the court ordered DOL to calculate the 2021 AEWR under the previous AEWR methodology.103

In low-wage jobs and some high-wage jobs, temporary migrant workers are especially vulnerable to infection due to the nature of their occupations and visa program rules

Across the United States, workers employed in the harvesting, production, and processing of food have been especially impacted by the COVID-19 pandemic, with high infection rates, multiple large outbreaks, and numerous deaths.104 This is of special concern with respect to temporary migrant workers, because hundreds of thousands of them work in lower-wage occupations that have seen major outbreaks, especially through the H-2A and H-2B visa programs. All 200,000 H-2A workers are employed in agriculture—mostly as crop farmworkers—and account for roughly 10% of the entire workforce that is harvesting crops.105

In the case of the H-2B program, a new temporary regulation similar to the one issued for H-2A was promulgated, which allows employers to extend current H-2B workers or hire new H-2B workers who are already present in the United States if they will perform work essential to the U.S. food supply chain, and permits H-2B workers to remain in the United States beyond the three-year total maximum allowable period of stay.106 This was at least a tacit acknowledgement that H-2B workers were in so-called essential occupations and doing vastly important work. (A report in Roll Call described the temporary rule as intended “to help beleaguered meatpacking plants keep those foreign employees in the United States as the companies deal with absenteeism and workers quarantined because of COVID-19 exposure.”)107 One of the top H-2B occupations in 2019 was Meat, Poultry, and Fish Cutters and Trimmers; DOL certified nearly 8,500 jobs in that occupation.108 The vast majority of those jobs are certified for work at seafood-processing plants, including processing crab, shrimp, crawfish, and other shellfish.

There have been numerous reports published in the media and from industry analysts finding that COVID-19 outbreaks are widespread on both farms and in seafood-processing plants.109 One of those reports, from CalMatters, noted that:

Farmworkers were three times as likely to catch COVID-19 as workers in any other industry, according to a California Institute of Rural Studies (CIRS) report based on Monterey County data from late June. Author and CIRS co-founder Don Villarejo estimated that ratio was likely true statewide, an assertion Monterey County Farm Bureau Executive Director Norm Groot supported.110

In addition, a report published in September in Politico showed that counties across the country with the highest per capita rates of COVID-19 infections are also some of the top agricultural-producing counties. And while Politico also noted that “the vast majority of states, county and local health departments are not collecting data on how many individual farmworkers have tested positive for coronavirus, nor how many have been hospitalized or died from the virus,”111 one media outlet has compiled some key numbers. The Food & Environment Reporting Network’s interactive map on COVID-19 outbreaks in the food system showed that as of Jan. 5, 2021, 52,175 meatpacking workers, 14,852 food processing workers, and 12,558 farmworkers have tested positive for COVID-19, and at least 352 workers have died, including 40 farmworkers.112

Temporary migrant workers in these food chain occupations have little recourse if their employers act negligently or recklessly when it comes to protecting them, as evidenced by the recent experience of two H-2B workers: Reuters and other outlets reported on two Mexican women working with H-2B visas for a seafood-processing plant in Louisiana, where the workers alleged they were forced to live in employer-provided housing while they were ill, and fired in retaliation for going to the hospital for a COVID-19 test and to seek medical care—both tested positive at the hospital.113 Along with being fired, the employer allegedly threatened to report the workers to immigration authorities. In response and with the help of Centro de los Derechos del Migrante, an advocacy group, the workers filed charges with the National Labor Relations Board and the Occupational Safety and Health Administration (OSHA) at DOL. The treatment of these workers by their employers shows the difficulties faced by workers who rely on their employers for their immigration status; they had numerous incentives to follow orders, stay quiet, and not seek testing and treatment—since doing so likely meant losing their jobs and becoming deportable.

Adequate housing that allows for physical distancing is also an area of concern. The H-2A program is the only work visa program that requires employers to provide housing at no cost to the workers. There are federal regulations and sometimes local laws that govern the quality of the H-2A housing and even how many square feet per worker are required, and OSHA issued additional guidance during the pandemic for workers living in communal settings.114 Nevertheless, it is a well-known fact that many H-2A workers reside in substandard and often cramped conditions that do not meet the required standards but go undetected by state and federal authorities.115

Many H-2A workers share bedrooms, raising the question of whether employers should arrange additional housing—which raises costs, sometimes significantly in expensive areas, such as in certain regions of California—as well as alternative housing for workers who get sick or are exposed to the virus and need to be quarantined. There is recent evidence that many employers have not done enough to ensure housing for H-2A workers is adequate to prevent the spread of COVID-19. A recent investigative report in CalMatters, titled “COVID rips through motel rooms of guest workers who pick nation’s produce,” reviewed federal records and found that H-2A workers in California “sleep on average five to a room.” The report cited Monterey County Health Officer Dr. Ed Moreno, who told reporters that “farmworkers face the greatest infection risk not at work, but at home,” further noting that “one [H-2A] resident constitutes an outbreak because of the possibility of it spreading like what we’re seeing.”116

Housing also matters after workers get infected; have employers been allowing infected workers to recover in employer-provided housing or have they fired them, causing them to lose their immigration status and become deportable? Like other farmworkers, many if not most H-2A workers lack health care coverage; have employers been assisting them in finding a doctor and helping pay their medical bills?

While H-2A is the only visa program that requires employers to provide housing at no cost to the workers, shared housing is also a concern in other visa programs. For example, in the H-2B and J-1 visa programs, employers and program sponsors often provide housing but charge fees to their workers. While that arrangement can raise ethical concerns on its own, it is also the case that there are even fewer laws or regulations that govern the adequacy or health and safety standards for H-2B and J-1 housing. Migrant worker advocates know from speaking with workers that often H-2B and J-1 workers in employer-provided housing live in substandard and cramped conditions, a fact that legal complaints and news reports have confirmed.117 An H-2B worker involved in the aforementioned complaint brought by Centro de los Derechos del Migrante alleged that in her employer-provided housing, she “shared a bathroom and kitchen with nearly fifty other women [and] slept in a bedroom that housed eight workers and was only equipped with bunk beds.”118

Transportation raises additional health and safety issues during the pandemic in terms of physical distancing. H-2A is the only work visa program that requires employers to provide daily transportation between the worksite and living quarters, at no cost to the workers. While other visa programs don’t require that transportation be provided at no cost to workers, employer-provided transportation is also common in the H-2B and J-1 visa programs. In order to keep workers safe, employers need to adequately clean transport vehicles and implement physical distancing measures during transport, which in most cases will require additional vehicles or an increased number of trips with fewer workers in each vehicle. This can raise costs and slow down productivity, which is why governments, workers, and advocates should be concerned about whether employers are actually implementing such measures.

College-educated temporary migrant workers in front-line occupations are also at risk—tens of thousands of them are employed as doctors and in other health care occupations essential to combating COVID-19 and treating those who have become infected with the virus. The dangers of working in the health care sector during the COVID-19 pandemic are all too obvious. While reliable estimates are difficult to come by for health care workers who have been infected and died from COVID-19,119 an analysis published by Amnesty International on Sept. 3, 2020, estimated the number of health care worker deaths in the United States to be 1,077,120 and a more recent report from Kaiser Health News and The Guardian suggests the number could be higher by the thousands.121

Temporary migrant workers in health care positions are usually employed through either the J-1 Exchange Visitor Program or the H-1B visa program. The number of H-1B visas approved for health care occupations between 2017 and 2019 was just over 43,000, and the number of J-1 doctors in 2019 (in the J-1 program for “Alien Physicians”) was 12,000—meaning the number of temporary migrant workers employed in health care is roughly 55,000 at least.122 However, there are likely thousands more employed with visas approved before 2017 and in other visa programs,123 but a reliable estimate is impossible to calculate due to the lack of data by occupation in other temporary work visa programs.

The COVID-19 pandemic left temporary migrant workers stranded and without access to the social safety net

Job losses in the U.S. economy quickly numbered in the tens of millions after the start of the pandemic and the national emergency that was declared by the Trump administration in March 2020, and many temporary migrant workers were employed in industries that faced mass layoffs, like restaurants, hotels, and other jobs in the hospitality industry. Those who were laid off faced numerous dilemmas. For example, in a number of temporary work visa programs, when a worker is laid off, they are required to depart the United States within a few days. But getting home was virtually impossible for many laid-off workers, due to new travel restrictions around the world and few commercial flights being available, as well as the loss of income. Both news outlets and advocates reported stories of stranded workers.124 Second, many visas do not allow the worker to find a new employer and begin working at a new job, leaving them unable to afford to pay for basic necessities while stranded in the United States. And third, most temporary migrant workers are not eligible for the unemployment insurance (UI) benefits that have helped financially support tens of millions of U.S. workers during this pandemic.

In terms of UI, temporary migrant workers are usually not able to collect, because if their visa does not permit them to find a new employer and begin new employment, then under UI laws they are not considered “able to work” and “available for work,” which is part of the requirement that they be seeking employment while collecting UI benefits.125 The multiple COVID-19 relief packages passed into law did not include UI benefits for temporary migrant workers or undocumented workers.

The Trump administration failed to take any new measures to protect temporary migrant workers during the pandemic

While hundreds of thousands of temporary migrant workers are employed in occupations deemed essential that put them at high risk of infection with COVID-19, the federal government during the Trump administration did not implement any new mandatory and enforceable health and safety standards to protect workers on the job and compel employers to take additional safety measures and precautions at the workplace. There were numerous calls from worker advocates for the Trump administration to publish new enforceable standards for all workers that are specific to COVID-19, especially in the most impacted industries like meat and poultry processing and agriculture, but they went unheeded.126 There’s no doubt that new rules taking into account the needs and vulnerabilities of temporary migrant workers would have made a difference. In a sharp contrast with the Trump administration, on Jan. 21, 2021, President Biden issued an executive order directing the Occupational Safety and Health Administration at DOL to release new guidance to employers on protecting workers from COVID-19 within two weeks and to consider whether any emergency temporary standards on COVID-19 were necessary.127

In terms of occupational health and safety, what the Trump administration did issue was nonmandatory guidance, including joint interim guidance from DOL’s OSHA and the Centers for Disease Control (CDC) for businesses and employers responding to COVID-19,128 as well as for employers and workers in multiple industries where temporary migrant workers are employed, including meat and poultry processing, seafood processing, agriculture, and manufacturing.129 OSHA also issued interim guidance for construction work and health care workers and employers,130 and the CDC issued interim guidance for health care workers131 and an information page for construction workers.132 In most cases, the OSHA or joint OSHA/CDC interim guidance usually provides a clear disclaimer that it “is not a standard or regulation, and it creates no new legal obligations,” often pointing to the Occupational Safety and Health Act’s requirement that employers must already “comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan,” and that “the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.”133

The lack of enforceable new OSHA standards was roundly criticized by workers’ advocates, and in March 2020 the AFL-CIO—the largest trade union federation in the United States, along with a number of individual unions—petitioned OSHA to implement an emergency temporary standard, arguing that it was necessary “to protect working people from occupational exposure to infectious diseases, including COVID-19,” and that “voluntary guidance to the employer community was no substitute for the immediate imposition of mandatory, legally-enforceable, COVID-19-specific duties on employers to protect workers.”134 The unions later sued in federal court, seeking to compel OSHA to issue an emergency temporary standard, but the case was dismissed in June 2020.135

That lack of action at the federal level to protect workers during the Trump administration stands in stark contrast to the numerous federal actions the administration took—via multiple agencies like DOL, DHS, USDA, and the State Department—to help ensure that temporary migrant workers could continue their employment in the United States, without having to depart, and that new workers could arrive. In other words, the Trump administration facilitated and even expedited the process for hiring temporary migrant workers so they could continue picking crops and producing food and various goods and services that benefit the American public, but refused to order those same agencies to implement measures to keep them safe and healthy. On the first full day that President Biden was in office, his administration took more actions to protect workers from COVID-19 than the Trump administration took or implemented in nearly a year while it was overseeing the response to the pandemic. The Biden administration now has an opportunity to follow through on those initial steps to ensure that the federal government uses every tool at its disposal to keep workers—including temporary migrant workers—safe and healthy in their workplaces.

Acknowledgment

The author would like to thank Unbound Philanthropy for their guidance and generous support for this project.

Notes

1. Donald J. Trump, “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” (presidential proclamation), March 13, 2020.

2. See, for example, Janet Napolitano, “Prepared Remarks by Secretary Napolitano on Immigration Reform at the Center for American Progress,” U.S. Department of Homeland Security, Nov. 13, 2009.

3. Ray Marshall, Immigration for Shared Prosperity: A Framework for Comprehensive Reform (Washington, D.C.: Economic Policy Institute, 2009).

4. See, for example, Ashley Parker and Steven Greenhouse, “Labor and Business Reach Deal on Immigration Issue,” New York Times, March 30, 2013; Migration that Works coalition, “Proposal for an Alternative Model for Labor Migration,” January 2020.

5. See, for example, Ashley Parker and Steven Greenhouse, “Labor and Business Reach Deal on Immigration Issue,” New York Times, March 30, 2013.

6. Dara Lind, “‘Abolish ICE’ Shows How Far Left Democrats Have Moved on Immigration,” Vox, July 9, 2018.

7. The White House, “Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System,” January 20, 2021.

8. For the most part, these terms are interchangeable, and no one term is definitive or has been agreed to.

9. See discussion of the average maximum allowed duration of stay of temporary visa holders across Organisation for Economic Co-operation and Development countries in Daniel Costa and Philip Martin, “OECD Highlights Temporary Labor Migration: Almost as Many Guestworkers as Permanent Immigrants,” Working Economics Blog (Economic Policy Institute), Dec. 4, 2019.

10. Daniel Costa and Philip Martin, Temporary Labor Migration Programs: Governance, Migrant Worker Rights, and Recommendations for the U.N. Global Compact for Migration, Economic Policy Institute, Aug. 1, 2018.

11. Jill H. Wilson, Immigration: Nonimmigrant (Temporary) Admissions to the United States, Congressional Research Service, updated Sept. 10, 2019.

12. For example, cap-exempt H-1Bs are available if an employer is a university, a university-affiliated nonprofit entity, or a nonprofit research organization.

13. Abby Budiman, “Key Findings About U.S. Immigrants,” Fact Tank (Pew Research Center), Aug. 20, 2020.

14. Previous estimates include Costa and Rosenbaum, who estimated that approximately 1.4 million temporary migrant workers were employed in the United States in 2013 through temporary work visa programs, accounting for roughly 1% of the labor force at the time, and the Organisation for Economic Co-operation and Development, which estimated in 2019 that there were 1.6 million full-time-equivalent jobs filled by migrants with temporary visas in 2017, also accounting for 1% of the labor force. Daniel Costa and Jennifer Rosenbaum, Temporary Foreign Workers by the Numbers: New Estimates by Visa Classification, Economic Policy Institute, March 7, 2017; Organisation for Economic Co-operation and Development, International Migration Outlook 2019, Oct. 15, 2019.

15. For some work visa programs, simply counting the number of visas does not provide an accurate count of new workers on a visa in a given year or the number of visa holders who are employed in a visa program (since not all are employed). Thus, in some cases it is more accurate to count petitions approved or work authorization documents. For more background, see Daniel Costa and Jennifer Rosenbaum, Temporary Foreign Workers by the Numbers: New Estimates by Visa Classification, Economic Policy Institute, March 2017.

16. U.S. Citizenship and Immigration Services, Office of Policy and Strategy, Policy Research Division, H-1B Authorized-to-Work Population Estimate, U.S. Department of Homeland Security, June 2020; see also Ethan Baron, “H-1B: Government Issues First-Ever Official Estimate of Visa Population in U.S.,” Mercury News, June 26, 2020.

17. See Daniel Costa and Jennifer Rosenbaum, Temporary Foreign Workers by the Numbers: New Estimates by Visa Classification, Economic Policy Institute, March 7, 2017. The updated methodology includes visa classifications that authorize employment but were not included in the previous estimate and uses additional data sources for B-1, E-2, H-1B, and J-1 visas.

18. The data in Figure A do not represent the total population of temporary migrant workers or those with EB green cards who are currently authorized to be employed or who were authorized to be employed at a particular point in time—they only represent new visas issued in each year.

19. For a more in-depth discussion of these data, see Daniel Costa, “Temporary Migrant Workers or Immigrants? The Question for U.S. Labor Migration,” Russell Sage Foundation Journal of the Social Sciences 6, no. 3 (2020), https://doi.org/10.7758/RSF.2020.6.3.02.

20. United Nations Office of the High Commissioner for Refugees, “More Resettlement Needed as Only 4.5 Per Cent of Global Resettlement Needs Met in 2019” (press release), Feb. 5, 2020.

21. Muzaffar Chishti and Jessica Bolter, “The ‘Trump Effect’ on Legal Immigration Levels: More Perception Than Reality?,” Policy Beat (Migration Policy Institute), Nov. 20, 2020.

22. Muzaffar Chishti and Jessica Bolter, “The ‘Trump Effect’ on Legal Immigration Levels: More Perception Than Reality?,” Policy Beat (Migration Policy Institute), Nov. 20, 2020.

23. Transactional Records Access Clearinghouse, “Details on MPP (Remain in Mexico) Deportation Proceedings,” TRAC Immigration, Syracuse University (data through September 2020).

24. U.S. Department of Homeland Security, “DHS Statement on the Suspension of New Enrollments in the Migrant Protection Protocols Program,” Jan. 20, 2021.

25. Associated Press, “Pence Ordered Borders Closed in March over Objection of CDC Experts,” Los Angeles Times, Oct. 5, 2020.

26. See, for example, National Immigrant Justice Center, “A Timeline of the Trump Administration’s Efforts to End Asylum,” Heartland Alliance Program, last updated November 2020; Sarah Pierce and Jessica Bolter, Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes Under the Trump Presidency, Migration Policy Institute, July 2020.

27. U.S. Department of State, “Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts: Fiscal Years 2015–2019,” Report of the Visa Office 2019, Bureau of Consular Affairs, Fiscal Year 2019.

28. U.S. Department of State, “Monthly Immigrant Visa Issuance Statistics,” Fiscal Year 2020, Bureau of Consular Affairs.

29. See Emma Specter, “Can Trump Actually Halt Immigration to the U.S.?,” Vogue, April 21, 2020. Original tweet is unavailable due to suspended account.

30. Donald J. Trump, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” (presidential proclamation), April 22, 2020.

31. U.S. Citizenship and Immigration Services, “Green Card Through the Diversity Immigrant Visa Program” (web page), last updated Jan. 11, 2018.

32. Ted Hesson, “Trump Extends Immigration Bans Despite Opposition from U.S. Business Groups,” Reuters, Dec. 31, 2020.

33. Camilo Montoya-Galvez, “Biden to Rescind Trump’s Pandemic-Era Limits on Immigrant and Work Visas, Top Adviser Says,” CBS News, January 28, 2021.

34. Daniel Costa, “Trump Executive Order to Suspend Immigration Would Reduce Green Cards by Nearly One-Third If Extended for a Full Year,” Working Economics Blog (Economic Policy Institute), April 23, 2020.

35. Litigation was brought against the Trump administration challenging the presidential proclamation restricting green cards; a federal court issued a preliminary injunction ordering the Trump administration to stop denying Diversity Visas, but the other suspensions are still in place, and litigation continues. See American Immigration Lawyers Association, “Resource Related to Lawsuit Granting Preliminary Relief for Diversity Visa Applicants,” AILA Doc. No. 20091614, Sept. 16, 2020.

36. Donald J. Trump, “Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak” (presidential proclamation), June 22, 2020.

37. Ted Hesson, “Trump Extends Immigration Bans Despite Opposition from U.S. Business Groups,” Reuters, Dec. 31, 2020.

38. Camilo Montoya-Galvez, “Biden to Rescind Trump’s Pandemic-Era Limits on Immigrant and Work Visas, Top Adviser Says,” CBS News, January 28, 2021.

39. Ted Hesson, “Explainer: Who Is Affected by Trump’s Suspension of Foreign Work Visas?,” Reuters, June 23, 2020; Daniel Costa, “Trump’s Ban on Temporary Work Visas Is an Attempt to Scapegoat Immigrants During an Economic Collapse: Real Reform Would Improve Wages and Working Conditions,” Working Economics Blog (Economic Policy Institute), June 23, 2020.

40. Zolan Kanno-Youngs, “Executive Order Halting New Green Cards Includes Exceptions,” New York Times, April 22, 2020.

41. Michael D. Shear, Zolan Kanno-Youngs, and Caitlin Dickerson, “Trump Halts New Green Cards, but Backs off Broader Immigration Ban,” New York Times, April 21, 2020.

42. U.S. Citizenship and Immigration Services, “Characteristics of H-1B Specialty Occupation Workers: Fiscal Year 2019 Annual Report to Congress, October 1, 2018–September 30, 2019,” March 5, 2020.

43. Genevieve Douglas, “Revamped Suit Challenges Presidential Power to Bar Entry to U.S.,” Bloomberg Law, July 17, 2020.

44. U.S. Department of State, “National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak,” Bureau of Consular Affairs, last updated Aug. 12, 2020.

45. Specifically, the Gomez et al v. Trump case (D.D.C., No. 1:20-cv-01419, amended complaint July 17, 2020).

46. Genevieve Douglas, “New Guidance Details Visa Ban’s National Interest Exceptions,” Bloomberg Law, Aug. 12, 2020.

47. Centro de los Derechos del Migrante, Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and Recommendations for Change, n.d., accessed December 10, 2020.

48. United Nations Office of the High Commissioner for Human Rights, “End of Visit Statement, United States of America (6–16 December 2016) by Maria Grazia Giammarinaro, UN Special Rapporteur in Trafficking in Persons, Especially Women and Children,” Washington, D.C., Dec. 19, 2016. See also United Nations Office of the High Commisioner for Human Rights, “Debt Bondage Remains the Most Prevalent Form of Forced Labour Worldwide—New UN Report” (press release), Sept. 15, 2016; United Nations Human Rights Council, Report of the Special Rapporteur on Contemporary Forms of Slavery, Including Its Causes and Consequences, Thirty-third session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, July 4, 2016, accessed via the United Nations Official Document System (to access this report, open the Official Document System and then click this link while you have the Official Document System open); United Nations Office on Drugs and Crime, The Role of Recruitment Fees and Abusive and Fraudulent Practices of Recruitment Agencies in Trafficking in Persons, 2015.

49. Michael Grabell, “Who Would Pay $26,000 to Work in a Chicken Plant?” ProPublica, Dec. 28, 2017.

50. Steven Greenhouse, “Low Pay and Broken Promises Greet Guest Workers,” New York Times, Feb. 28, 2007.

51. Liam Stack, “Indian Guest Workers Awarded $14 Million,” New York Times, Feb. 18, 2015; Jessica Garrison, Ken Bensinger, and Jeremy Singer-Vine, “The New American Slavery: Invited to the U.S., Foreign Workers Find a Nightmare,” BuzzFeed News, July 24, 2015; U.S. Department of Justice, “Miami Beach Sex Trafficker Sentenced to 30 Years in Prison for International Trafficking Scheme Targeting Foreign University Students” (press release), U.S. Attorney’s Office, Southern District of Florida, March 24, 2017; Holbrook Mohr, Mitch Weiss, and Mike Baker, “AP Impact: US Fails to Tackle Student Abuses,” Associated Press, Dec. 6, 2010; last updated Nov. 21, 2015.

52. Matt Smith, Jennifer Gollan, and Adithya Sambamurthy, “Job Brokers Steal Wages, Entrap Indian Tech Workers in US,” Reveal News, Oct. 27, 2014; Farah Stockman, “Teacher Trafficking: The Strange Saga of Filipino Workers, American Schools, and H-1B Visas,” Boston Globe, June 12, 2013; Tom McGhee, “Kizzy Kalu Lured Nurses to U.S. with Promises of High Pay, Prosecutors Say,” Denver Post, June 4, 2013.

53. See, for example, Mary Bauer and Meredith Stewart, Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center, Feb. 19, 2013; International Labor Recruitment Working Group, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse, February 2013.

54. See, for example, Justice in Motion, Visa Pages: U.S. Temporary Foreign Worker Visas, H-2A Agricultural Work Visa, updated November 2015; U.S. Citizenship and Immigration Services, “Buy American and Hire American: Putting American Workers First” (data resources), 2020.

55. See, for example, Jobofer.org.

56. See, for example, Christopher Lapinig, “How U.S. Immigration Law Enables Modern Slavery,” The Atlantic, June 7, 2017.

57. See, for example, Mary Bauer and Meredith Stewart, Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center, Feb. 19, 2013.

58. Mary Bauer and Meredith Stewart, Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center, Feb. 19, 2013; Jessica Garrison, Ken Bensinger, and Jeremy Singer-Vine, “The New American Slavery: Invited to the U.S., Foreign Workers Find a Nightmare,” BuzzFeed News, July 24, 2015; U.S. Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154, reissued May 30, 2017.

59. Nikhil Swaminathan, “Inside the Growing Guest Worker Program Trapping Indian Students in Virtual Servitude,” Mother Jones, September/October 2017 issue.

60. Comments of Michael Clemens at “Shared Border, Shared Future: A Blueprint to Regulate US-Mexico Labor Mobility,” an event hosted by the Center for Global Development, Sept. 13, 2016; Alex Nowrasteh, How to Make Guest Worker Visas Work, Cato Institute, Jan. 31, 2013.

61. See the Economic Policy Institute’s Unequal Power project (epi.org/unequalpower), started in 2020 (ongoing).

62. Daniel Costa, The H-2B Temporary Foreign Worker Program: For Labor Shortages or Cheap, Temporary Labor?, Economic Policy Institute, Jan. 19, 2016; Ron Hira, “New Data Show How Firms Like Infosys and Tata Abuse the H-1B Program,” Working Economics Blog (Economic Policy Institute), Feb. 19, 2015; Daniel Costa, “H-2B Crabpickers Are So Important to the Maryland Seafood Industry That They Get Paid $3 Less Per Hour Than the State or Local Average Wage,” Working Economics Blog (Economic Policy Institute), May 26, 2017.

63. Daniel Costa and Ron Hira, H-1B Visas and Prevailing Wage Levels: A Majority of H-1B Employers—Including Major U.S. Tech Firms—Use the Program to Pay Migrant Workers Well Below Market Wages, Economic Policy Institute, May 4, 2020.

64. Monte Francis, “Fremont Tech Company Paid Workers $1.21 an Hour: U.S. Dept. of Labor,” NBC Bay Area, Oct. 22, 2014. See also George Avalos, “Workers Paid $1.21 an Hour to Install Fremont Tech Company’s Computers,” Mercury News, Oct. 22, 2014; updated Aug. 12, 2016. L-1 visa status confirmed in an email from George Avalos of Mercury News, Oct. 23, 2014.

65. Author’s analysis of historical data from Foreign Labor Certification Data Center, Online Wage Library, “7/2013 – 6/2014 FLC Wage Data,” https://flcdatacenter.com/Download.aspx, for Standard Occupational Classification codes 15-1142 and 49-2011, for region 36084, Oakland-Fremont-Hayward, CA Metropolitan Division (2013–2014).

66. U.S. Department of Labor, Wage and Hour Division, “US Department of Labor Investigation Finds Silicon Valley Technology Employer Owed More Than $40,000 to Foreign Workers” (press release no. 14-1717-SAN [SF-71]), Oct. 22, 2014, accessed Aug. 27, 2019.

67. Lauren A. Apgar, Authorized Status, Limited Returns: The Labor Market Outcomes of Temporary Mexican Workers, Economic Policy Institute, May 21, 2015.

68. Bivens and Shierholz broadly define “monopsony power” as “the leverage enjoyed by employers to set their workers’ pay.” See Josh Bivens and Heidi Shierholz, What Labor Market Changes Have Generated Inequality and Wage Suppression?: Employer Power Is Significant but Largely Constant, Whereas Workers’ Power Has Been Eroded by Policy Actions, Economic Policy Institute, Dec. 12, 2018.

69. Eric M. Gibbons et al., “Monopsony Power and Guest Worker Programs,” IZA Institute of Labor Economics, Discussion Paper no. 12096, January 2019.

70. Ken Bensinger, Jessica Garrison, and Jeremy Singer-Vine, “Employers Abuse Foreign Workers. U.S. Says, by All Means, Hire More,” BuzzFeed News, May 12, 2016.

71. Daniel Costa, “Immigration Enforcement Is Funded at a Much Higher Rate Than Labor Standards Enforcement—and the Gap Is Widening,” Working Economics Blog (Economic Policy Institute), June 20, 2019.

72. Daniel Costa, Philip Martin, and Zachariah Rutledge, Federal Labor Standards Enforcement in Agriculture: Data Reveal the Biggest Violators and Raise New Questions About How to Improve and Target Efforts to Protect Farmworkers, Economic Policy Institute, December 2020.

73. See, for example, Sankar Mukhopadhyay and David Oxborrow, “The Value of an Employment-Based Green Card,” Demography 49 (February 2012): 219–237, https://doi.org/10.1007/s13524-011-0079-3; Manuel Pastor and Justin Scoggins, Citizen Gain: The Economic Benefits of Naturalization for Immigrants and the Economy, Center for the Study of Immigrant Integration, University of Southern California, December 2012.

74. William Kandel, The Employment-Based Immigration Backlog, Congressional Research Service, R46291, March 26, 2020.

75. See Subtitle F—Prevention of Trafficking in Persons and Abuses Involving Workers Recruited Abroad, in Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013). For a summary of the provisions, see Daniel Costa, Future Flows and Worker Rights in S. 744: A Guide to How the Senate Immigration Bill Would Modify Current Law, Economic Policy Institute, November 2013.

76. H-1B and L-1 Visa Reform Act of 2020, S. 3370, 116th Cong. (2020). See also Rep. Bill Pascrell, “Pascrell, Grassley, Durbin, Gosar, Khanna, Pallone, Gooden Lead Overhaul to H1-B, L-1 Visa Programs: Bipartisan, Bicameral Reforms Will Protect American Workers and Improve Fairness for Skilled Labor Applicants” (press release), May 22, 2020.

77. H-1B and L-1 Visa Reform Act of 2020, H.R. 6993, 116th Cong. (2020).

78. Sen. Richard Durbin, “Durbin, Blumenthal, Harris, Klobuchar: Keep International Student Talent in America: The Keep STEM Talent Act Would Retain International Graduates with Advanced STEM Degrees” (press release), June 6, 2019.

79. See Benjamin Wermund, “Rep. Joaquin Castro Proposes Path to Citizenship for Workers with H-2B Visas,” San Antonio Express-News, December 15, 2020; Seasonal Worker Solidarity Act of 2020, H.R.8954, 116th Cong. (2020). In the current H-2B program, employers can use private wage surveys in order to legally pay workers less than the local average wage; see discussion in Daniel Costa, “H-2B Crabpickers Are So Important to the Maryland Seafood Industry That They Get Paid $3 Less per Hour Than the State or Local Average Wage,” Working Economics Blog (Economic Policy Institute), May 26, 2017.

80. See, for example, Demetrios G. Papademetriou et al., Aligning Temporary Immigration Visas with U.S. Labor Market Needs: The Case for a New System of Provisional Visas, Migration Policy Institute, July 2009.

81. Daniel Costa, “Immigration Enforcement Is Funded at a Much Higher Rate Than Labor Standards Enforcement—and the Gap Is Widening,” Working Economics Blog (Economic Policy Institute), June 20, 2019.

82. Ken Bensinger, Jessica Garrison, and Jeremy Singer-Vine, “Employers Abuse Foreign Workers. U.S. Says, by All Means, Hire More,” BuzzFeed News, May 12, 2016.

83. U.S. Citizenship and Immigration Services, “Victims of Criminal Activity: U Nonimmigrant Status” (web page), last updated June 12, 2018.

84. Rep. Judy Chu, “Rep. Chu and Sen. Menendez Introduce Bicameral POWER Act to Protect Immigrant Workers” (press release), May 22, 2018; National Immigration Law Center, “POWER Act Would Empower U.S. Workers at a Critical Time” (press release), May 22, 2018.

85. See discussion of truckloads of paper applications for temporary work visas arriving at USCIS, in Miriam Jordan, “Visa Applications Pour in by Truckload Before Door Slams Shut,” New York Times, April 3, 2017.

86. See, for example, Jeremy McLean, The Case for Transparency: Using Data to Combat Human Trafficking Under Temporary Foreign Worker Visas, Justice in Motion, September 2020.

87. Rep. Lois Frankel, “Frankel, Deutch, Blumenthal, & Cruz Introduce Bipartisan, Bicameral Bill to Bring Transparency to Temporary Worker Visa Programs & Combat Human Trafficking” (press release), July 23, 2019; Visa Transparency Anti-Trafficking Act of 2019, H.R. 3881, 116th Cong. (2019); Visa Transparency Anti-Trafficking Act of 2019, S. 2224, 116th Cong. (2019).

88. See, for example, Ray Marshall and Ross Eisenbrey, “Commission Needed to Solve Immigration,” The Hill, June 10, 2010.

89. See, for example, Martin Ruhs and Philip Martin, “On Migration, the US Should Copy the UK,” Financial Times, Feb. 18, 2013; Daniel Costa and Philip Martin, Temporary Labor Migration Programs: Governance, Migrant Worker Rights, and Recommendations for the U.N. Global Compact for Migration, Economic Policy Institute, Aug. 1, 2018.

90. See, for example, legislation coauthored and introduced by former Reps. Solomon Ortiz (D-Texas) and Luis Gutierrez (D-Ill.), which had 103 total cosponsors. See Section 501 in the Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (CIR ASAP), H.R. 4321, 111th  Cong. (2009). CIR ASAP was later reintroduced in 2013 by Reps. Raul Grijalva (D-Ariz.) and Filemon Vela, Jr. (D-Texas), as the CIR ASAP Act of 2013, H.R. 3163, 113th Cong. (2013).

91. Alicia A. Caldwell and Michelle Hackman, “U.S. Suspends Visa Processing in Mexico, Threatening Businesses Reliant on Seasonal Workers,” Wall Street Journal, March 17, 2020.

92. Chris Walljasper, “U.S. Limits Mexico Guest Worker Visas, Sends Farmers Scrambling,” Reuters, March 17, 2020.

93. U.S. Department of State, “Important Announcement on H2 Visas” (press release), Bureau of Consular Affairs, March 26, 2020.

94. Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency [temporary final rule], 85 Fed. Reg. 21739–21745 (April 20, 2020).

95. U.S. Department of Agriculture, “DHS and USDA Move to Protect American Farmers and Ensure Continued Flow of America’s Food Supply” (press release) No. 0219.20, April 15, 2020.

96. U.S. Department of Labor, “Adverse Effect Wage Rates (Starting 12/21/2020) Until Further Notice,” Employment and Training Administration, 2020.

97. Daniel Costa, “Trump Administration Looking to Cut the Already Low Wages of H-2A Migrant Farmworkers While Giving Their Bosses a Multibillion-Dollar Bailout,” Working Economics Blog (Economic Policy Institute), April 14, 2020; Daniel Costa and Philip Martin, Coronavirus and Farmworkers: Farm Employment, Safety Issues, and the H-2A Guestworker Program, Economic Policy Institute, March 24, 2020.

98. Franco Ordoñez, “White House Seeks to Lower Farmworker Pay to Help Agriculture Industry,” National Public Radio Special Series: The Coronavirus Crisis, April 10, 2020.

99. Michelle Hackman and Jesse Newman, “White House Seeks to Cut Farmworker Wages, Ease Hiring Constraints,” Wall Street Journal, April 17, 2020.

100. Dave Jamieson, “Trump Administration Plan Would Cut Pay for Essential Farm Workers,” Huffington Post, Oct. 3, 2020, updated Oct. 5, 2020.

101. Farmworker Justice, “Federal Court Overturns USDA Cancellation of Farm Labor Wage Survey That Protects Tens of Thousands of Farmworkers’ Wages” (press release), Oct. 28, 2020.

102. Dave Jamieson, “Trump Administration Moves to Freeze Wages for Farmworkers Before Leaving Office,” Huffington Post, Nov. 9, 2020.

103. Farmworker Justice, “Federal Court Grants Farmworker Groups an Injunction Against U.S. Department of Labor’s Decision to Freeze Wages Under the H-2A Guestworker Program” (press release), Dec. 24, 2020.

104. Leah Douglas, “Covid-19 Shows No Sign of Slowing Among Food-System Workers,” Food & Environment Reporting Network, June 22, 2020.

105. Daniel Costa and Philip Martin, Coronavirus and Farmworkers: Farm Employment, Safety Issues, and the H-2A Guestworker Program, Economic Policy Institute, March 24, 2020.

106. Temporary Changes to Requirements Affecting H-2B Nonimmigrants Due to the COVID-19 National Emergency [temporary final rule], 85 Fed. Reg. 28843 (May 14, 2020).

107. Ellyn Ferguson, “Federal Agency Gives Meatpackers Room to Hire H-2B Workers,” Roll Call, May 13, 2020.

108. Office of Foreign Labor Certification, “H-2B Temporary Non-Agricultural Labor Certification Program – Selected Statistics, FY 2019 EOY,” Employment and Training Administration, U.S. Department of Labor website, Sept. 30, 2019.

109. See, for example, Demi Korban and Drew Cherry, “COVID-19 Cases in the Seafood, Fisheries and Processing Industry Continue to Rise,” IntraFish, May 20, 2020, updated July 9, 2020; Nat Herz, “COVID-19 Outbreak In Pacific Northwest Seafood Industry as Season Ramps Up,” National Public Radio, June 5, 2020; Morgan Krakow, “56 Workers at Anchorage Seafood Plant Test Positive for COVID-19,” Anchorage Daily News, July 24, 2020, updated July 27, 2020; Jackie Botts and Kate Cimini, “Investigation: COVID Rips Through Motel Rooms of Guest Workers Who Pick Nation’s Produce,” CalMatters, Aug. 17, 2020, updated September 4, 2020; Liz Crampton, “In Absence of Federal Action, Farm Workers’ Coronavirus Cases Spike,” Politico, June 9, 2020, updated June 10, 2020.

110. Jackie Botts and Kate Cimini, “Investigation: COVID Rips Through Motel Rooms of Guest Workers Who Pick Nation’s Produce,” CalMatters, Aug. 17, 2020, updated Sept. 4, 2020.

111. Helena Bottemiller Evich, Ximena Bustillo, and Liz Crampton, “Harvest of Shame: Farmworkers Face Coronavirus Disaster,” Politico, Sept. 8, 2020.

112. Leah Douglas, “Mapping Covid-19 Outbreaks in the Food System,” Food & Environment Reporting Network, April 22, 2020 (accessed on Jan. 5, 2021).

113. Christine Murray, “Mexican Seafood Workers Fight Back over U.S. Coronavirus Sacking,” Reuters, June 16, 2020.

114. Occupational Safety and Health Administration, “Additional Considerations for Workers Who Reside in Communal Living Arrangements,” U.S. Department of Labor website, accessed December 2020.

115. See, for example, Sky Chaddle, “Missouri’s Housing Inspections for H-2A Workers Missed Deficiencies for Years,” Midwest Center for Investigative Reporting and Missourian, Aug. 22, 2019.

116. Jackie Botts and Kate Cimini, “Investigation: COVID Rips Through Motel Rooms of Guest Workers Who Pick Nation’s Produce,” CalMatters, Aug. 17, 2020, updated Sept. 4, 2020.

117. See, for example, Miles Bryan, “Cultural Visitor or Laborer? J-1 Student Visa Program Fails to Deliver American Experience,” Wyoming Public Media, March 18, 2016; Miriam Jordan, Kris Maher, and Julie Jargon, “Guest Worker Visa Troubles Visit McDonald’s,” Wall Street Journal, March 8, 2013; KATC News, “H-2B Workers Say They Were Fired for Seeking Medical Treatment,” June 17, 2020.

118. KATC News, “H-2B Workers Say They Were Fired for Seeking Medical Treatment,” June 17, 2020.

119. Nina Martin, “Nobody Accurately Tracks Health Care Workers Lost to COVID-19. So She Stays Up at Night Cataloging the Dead,” ProPublica, Aug. 2, 2020.

120. Amnesty International, “Global: Amnesty Analysis Reveals over 7,000 Health Workers Have Died from COVID-19,” Sept. 3, 2020.

121. Kaiser Health News and The Guardian, “Lost on the Frontline: Our Key Findings About US Healthcare Worker Deaths to Date,” Jan. 20, 2021.

122. U.S. Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers: Fiscal Year 2019 Annual Report to Congress, October 1, 2018 – September 30, 2019, March 5, 2020; U.S. Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers, Fiscal Year 2018 Annual Report to Congress, October 1, 2017 – September 30, 2018, April 4, 2019; Education Commission for Foreign Medical Graduates and Foundation for Advancement of International Medical Education and Research, J-1 Physicians: Essential to U.S. Health Care (fact sheet), Sept. 24, 2020; U.S. Department of State, “Facts and Figures,” J-1 Visa Basics website, accessed January 5, 2021.

123. CBC News, “Confusion, Concern After Specialized Canadian Nurses Turned Back at U.S. Border,” March 15, 2017, updated April 6, 2017.

124. Bernice Yeung, “She Paid Thousands for a Visa to Work in the U.S. Then She Got Laid Off. Now, She’s Trapped,” ProPublica, June 4, 2020.

125. The only possible exception to the rule is for temporary migrant workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications who have a 60-day grace period to seek new employment if they lose their job, along with the right to accept and begin new employment, although each state unemployment insurance (UI) agency may interpret this situation differently. Whether a worker with one of these visas is eligible for UI benefits ultimately depends on how state law interprets the worker’s situation and status; in theory, these workers should be eligible for UI, at least during the 60-day period, because technically they are allowed to seek employment. After the 60-day period, however, if the worker had not found a job, they would be out of status and thus no longer authorized to work, and therefore no longer be able or available to work. Some states also allow workers to collect UI benefits if they have been temporarily laid off, meaning that if, for example, an H-1B worker was on standby, they might be eligible to collect while in that status. When it comes to the spouses of temporary migrant workers who have valid employment authorization documents (EADs), the situation is different. The spouses of temporary migrant workers who have L-2, E-2, J-2, and some H-4 visas (who are considered “derivative” spouses because their status derives from the principal visa holder), and who are eligible to obtain EADs, should be able to collect UI benefits because their employment is not tied to a particular employer and they are not required to depart the United States if they are laid off. However, if the principal spouse loses status, the derivative spouse likely will lose status as well, and therefore also lose work authorization. See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 Fed. Reg. 82398 (Nov. 18, 2016); Punam Rogers, “Massachusetts May Have Relief for Some Unemployed H-1B Workers,” Constangy Brooks, Smith, and Prophete LLP News & Analysis, Legal Bulletin #766, April 9, 2020; Suzanne Sukkar, Dan Ujczo, and Mark Heusel, “COVID-19: Unemployment Benefits for Temporary Foreign Workers,” All Things HR (Dickinson Wright PLLC blog), May 1, 2020.

126. See, for example, Deborah Berkowitz, “Worker Safety & Health During COVID-19 Pandemic: Rights & Resources (Toolkit),” National Employment Law Project, April 9, 2020.

127. Noam Scheiber, “Biden Tells OSHA to Issue New Covid-19 Guidance to Employers,” New York Times, Jan. 21, 2021; President Joseph R. Biden, “Executive Order on Protecting Worker Health and Safety” (executive order), Jan. 21, 2021.

128. Centers for Disease Control and Prevention, “Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020” (web page), Coronavirus Disease 2019 (COVID-19) website, updated May 6, 2020, accessed Dec. 10, 2020. Page subsequently updated Dec. 31, 2020, as “Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19).”

129. Centers for Disease Control and Prevention, “Meat and Poultry Processing Workers and Employers—Interim Guidance from CDC and the Occupational Safety and Health Administration (OSHA),” CDC website, updated Nov. 12, 2020; Centers for Disease Control and Prevention, “Agriculture Workers and Employers—Interim Guidance from CDC and the U.S. Department of Labor,” CDC website, updated Nov. 10, 2020; Centers for Disease Control and Prevention, “Protecting Seafood Processing Workers from COVID-19—Interim Guidance from CDC and the Occupational Safety and Health Administration (OSHA). Developed in Consultation with the Food and Drug Administration (FDA),” CDC website, updated Nov. 10, 2020; Centers for Disease Control and Prevention, “Manufacturing Workers and Employers—Interim Guidance from CDC and the Occupational Safety and Health Administration (OSHA),” CDC website, updated Nov. 10, 2020.

130. Occupational Safety and Health Administration, “Construction Work,” OSHA COVID-19 Control and Prevention website, accessed December 10, 2020; Occupational Safety and Health Administration, “Healthcare Workers and Employers,” OSHA COVID-19 Control and Prevention website, accessed Dec. 10, 2020.

131. Centers for Disease Control and Prevention, “Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic” (web page), Coronavirus Disease 2019 (COVID-19) website, updated July 15, 2020, and Dec. 14, 2020.

132. Centers for Disease Control and Prevention, “What Construction Workers Need to Know About COVID-19,” Coronavirus Disease 2019 (COVID-19) website, Oct. 29, 2020, updated Dec. 28, 2020.

133. See, for example, Centers for Disease Control and Prevention, “Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19)” (web page), Coronavirus Disease 2019 (COVID-19) website, updated May 6, 2020, accessed Dec. 10, 2020. Page subsequently updated Jan. 4, 2021, as “Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19).”

134. AFL-CIO, “Emergency Petition for a Writ of Mandamus, and Request for Expedited Briefing and Disposition,” filed in the United States Court of Appeals for the District of Columbia Circuit, May 18, 2020.

135. Mark Bocchetti, “Court Denies AFL-CIO Request to Require COVID-19 Rule from OSHA,” Roll Call, June 11, 2020.

The map below shows the estimated share and count of workers in each congressional district who would receive wage increases if the Raise the Wage Act of 2021 were enacted into law. The map also breaks down the share of workers who would benefit by age, gender, and race and ethnicity. Hover over any congressional district to see more information about the workforce that would be affected by the proposed federal minimum wage increase. (Grayed areas denote districts where few, if any, workers are likely to be affected by a change in the federal minimum wage because the prevailing state or local minimum wage will already be $15 or higher by 2025.) The table below the map lists all the data for all congressional districts.

Note: This page and map are an update to “The Impact of Raising the Minimum Wage to $15 by 2025, by Congressional District,” Economic Policy Institute, July 25, 2019.

Minimum Wage

Note that the map shows where affected workers live, which may be different from where they work. EPI’s Minimum Wage Simulation Model takes these differences into account by using data from the American Community Survey to compare the proposed change in the federal minimum wage with the prevailing minimum wage where individuals work. Because the map tracks where affected workers live, there may be small numbers of affected workers in congressional districts where the local minimum wage will already exceed $15 in 2025 (some workers living in those congressional districts may work in a different district). See the methodology for greater detail.

In addition, the Raise the Wage Act of 2021 also gradually raises and eliminates the lower minimum wage for tipped workers. In some jurisdictions that will already have a $15 minimum wage in 2025, there may be tipped workers who would be affected by the change in federal policy because their state or local tipped minimum wage law would still be lower than the proposed federal tipped minimum wage. See EPI’s research on the tipped minimum wage for more information.

Minimum Wage

Introduction, summary, and findings

Farmworkers in the United States earn some of the lowest wages in the labor market and experience an above-average rate of workplace injuries (Costa 2020; BLS 2020). No one knows the exact number of workers employed for wages on U.S. farms during the year, although there are multiple estimates. The Quarterly Census of Employment and Wages (QCEW) shows that average annual employment of farmworkers who are employed on farms that report to state unemployment insurance (UI) agencies was 1.3 million in 2019 (BLS-QCEW 2020a), but estimated that there were an additional 400,000 “wage and salary” farmworkers not included in QCEW data (BLS-QCEW 2020b), suggesting average employment of 1.7 million in 2019.

The QCEW reports average employment, which underestimates the number of unique farmworkers due to seasonality and turnover. The Census of Agriculture (COA) asks farmers (i.e. farm employers or farm owners) how many workers they employ directly; in 2017, farmers reported hiring 2.4 million farmworkers. However, the COA does not report workers who are brought to farms by nonfarm employers such as nonfarm labor contractors, and double counts workers employed by two farms, so 2.4 million is not a count of unique farm workers. The Current Population Survey included a December supplement through the 1980s, and it reported about 2.5 million farmworkers when annual average employment ranged between about 1.1 million to 1.3 million, suggesting about two unique workers per year-round equivalent job, or 2.5 million to 3.4 million workers today based on QCEW data (Rural Migration News 2020b).

The U.S. Department of Labor’s National Agricultural Workers Survey (NAWS) reports the characteristics of crop farmworkers, excluding those who are migrants employed through the H-2A temporary work visa program for agriculture (a “nonimmigrant” visa program), but not their number. H-2A is a temporary work visa program that allows farm employers
to hire migrant guestworkers if they anticipate a shortage of U.S. workers to fill temporary and seasonal jobs. Half of the non-H-2A crop workers were unauthorized immigrants in 2015–2016 (U.S. DOL-ETA 2018), and there were more than 200,000 H-2A workers employed in the United States in 2019, who worked for an average of six months out of the year, representing roughly one-tenth of farmworkers employed on U.S. crop farms (Costa and Martin 2020). Both unauthorized and H-2A workers have limited labor rights and are vulnerable to wage theft and other abuses due to their immigration status (Bernhardt et al. 2009; Apgar 2015). This leaves 40% of the workforce who are U.S. citizens and legal immigrants with full rights and agency in the labor market, so most farmworkers are vulnerable to violations of their rights because of their immigration status.

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) is the federal agency that protects the rights of farmworkers in terms of wage and hour laws—also known as employment laws—including those that protect H-2A “guest” workers. WHD labor standards enforcement actions are intended to ensure that the rights of workers are protected, and to level the playing field for employers, so that employers who underpay workers or engage in other cost-reducing behavior in violation of employment laws do not gain a competitive advantage over law-abiding employers. WHD aims to “promote and achieve compliance with labor standards to protect and enhance the welfare of the nation’s workforce” by enforcing 13 federal labor standards laws, including the Fair Labor Standards Act (FLSA), which requires minimum wages and overtime pay, and regulates the employment of workers who are younger than 18, as well as the Family and Medical Leave Act, and laws governing government contracts, consumer credit, and the use of polygraph testing, etc. (U.S. DOL-WHD 2020c).

WHD also enforces two laws and their implementing regulations specific to agricultural employment. One is the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), the major federal law that protects U.S. farmworkers. The other is the statute that establishes the H-2A program, a temporary work visa program that allows farm employers to hire migrant guestworkers if they anticipate a shortage of U.S. workers to fill temporary and seasonal jobs.

Federal labor law exempts farmworkers from some basic protections that cover most other workers in the U.S. labor market, including from the National Labor Relations Act—the federal law that provides the right to form and join unions, and to engage in protected, concerted activities to improve workplace conditions. Farmworkers are covered by the FLSA, but not the FLSA’s overtime provisions that require most workers to be paid time and a half after working eight hours in a day or 40 hours in a week.1

The WHD in 2019 had just under 1,500 employees, including 780 investigators, and a budget of $229 million to investigate 10.2 million U.S. establishments with 148 million employees (BLS-QCEW 2020a; U.S. DOL 2020; U.S. DOL-WHD 2020e). The number of workers that each WHD investigator is responsible for has risen dramatically. In 1978, there was one WHD investigator for every 69,000 workers; by 2018, one investigator was responsible for 175,000 workers (Hamaji et al. 2019), highlighting persistent WHD underfunding and understaffing.

WHD may order employers to pay back wages owed to underpaid employees, file suits to recover back wages and an equal amount as liquidated damages, and assess civil money penalties that aim to remove the incentive to violate employment laws. WHD also may seek injunctive relief from federal courts to mandate employer compliance and prosecute egregious violations criminally. When investigating workplace violations, WHD does not take immigration status into account, and can award back pay to farmworkers who are not authorized to be employed in the United States.

Ensuring compliance with labor standards in a low-wage sector with vulnerable and exploitable workers such as agriculture is difficult for any enforcement agency, but especially the underfunded WHD. Former WHD Administrator David Weil concluded that there “will never be sufficient resources to staff agencies to the level required to assure complete compliance with workplace laws, so there will always be a need for enforcement agencies to use their [limited] resources to achieve greatest impact.” (Weil 2018, 20). As a result, Weil introduced strategic enforcement, moving from responding to individual worker complaints to having half or more of WHD investigations be proactive or directed at firms likely to violate wage and hour laws. WHD also used such enforcement tools as the “hot goods” provision, which allows WHD to prohibit the shipment and distribution of goods produced in violation of FLSA’s minimum wage, overtime, or child labor requirements (Weil 2014a).

The COVID-19 pandemic has exacerbated the already-extreme vulnerabilities of farmworkers, who are considered “essential” workers and who work in person rather than remotely. Federal and state workplace safety agencies, as well as employer associations and buyers of farm commodities, have developed guidelines to protect essential workers by reorganizing work, travel, and housing, and providing workers with protective personal equipment. However, following these federal guidelines is not mandatory, and there are widespread concerns that limited access to the social safety net, combined with crowded conditions at work and in housing, could encourage sick employees to work and allow COVID-19 to spread rapidly among farmworkers (Costa and Martin 2020; Botts and Cimini 2020; Bottenmiller Evich, Bustillo, and Crampton 2020). COVID-19 cases are not always reported by industry and occupation, but media reports suggest there have been numerous outbreaks among farmworkers, and food processing and meatpacking workers (Dorning and Skerritt 2020; Douglas 2020).

The COVID-19 pandemic makes it more important than ever that farm employers comply with labor standards and protect farmworkers

This report analyzes federal data from WHD databases on wage and hour violations to understand labor standards enforcement efforts in the agricultural sector. The data represent only WHD investigations and violations of the law detected by WHD, but not all labor and employment law violations in agriculture. The immigration status of farmworkers, fear of retaliation and deportation, and even the perception that WHD will not take action or will fail to obtain meaningful remedies can contribute to farmworkers not reporting violations.

We analyze data on back wages and civil money penalties (CMPs) that may reflect negotiations and settlements between WHD and farm employers, which means that WHD investigators initially may have sought more back wages or higher CMPs. We also do not know whether the back wages or higher CMPs assessed eventually were paid to workers.

This report does not review health and safety issues on farms or analyze the limited enforcement data from the DOL’s Occupational Safety and Health Administration (OSHA), which enforces the Occupational Health and Safety Act.2 It deals only with federal enforcement, not the enforcement of state labor and employment laws that may provide more protections for farmworkers, as in California and New York. Some state governments do very little to enforce state wage and hour laws—or nothing at all—and in these states, the federal WHD may be the only government agency enforcing employment laws on farms, which may influence where WHD focuses its efforts geographically.

The purpose of this report is to analyze enforcement data to help stakeholders better understand the results of WHD enforcement, including where violations occurred, which laws were violated, and the penalties that were assessed over the past two decades. We hope the analysis will inform and spark a discussion about how to improve labor standards enforcement on farms, and help increase protections for farmworkers.

Major findings

Following are seven major findings from the report:

1. Investigations of employers that violate federal wage and hour laws designed to protect farmworkers detect millions in wage theft every year and lead to millions in civil money penalties against agricultural employers.

• The U.S. Department of Labor’s Wage and Hour Division (WHD) conducted more than 31,000 investigations of U.S. employers in agriculture between fiscal years 2000 and 2019, an average of 1,500 per year. As a result of these investigations, employers were ordered to pay $76 million in back wages to 154,000 farmworkers and to pay $63 million in civil money penalties for violations (in constant 2019 dollars). In 2019, average back wages owed per worker were $572 for violations of the Migrant and Seasonal Agricultural Worker Protection Act, $485 for violations of the H-2A visa program, and $813 for violations of the Fair Labor Standards Act. Violations of these laws include things like wage theft and providing inadequate housing as well as violations related to transportation, employer disclosures, and record-keeping.

• In 2019, WHD investigators found that agricultural employers owed farmworkers a total of $6.0 million in back wages and assessed violating employers $6.3 million in civil money penalties. Both back wages owed and civil money penalties assessed as a result of investigations peaked in fiscal year 2013, at $8.5 and $8.0 million, respectively (all in constant 2019 dollars).
• In 2019, WHD investigators found that employers owed $1.3 million in back wages to 2,300 workers based on violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), which is the major federal law that protects U.S. farmworkers, and these employers were assessed $2.9 million in civil money penalties for MSPA violations (all in constant 2019 dollars). The year 2019 was the peak year for both back wages owed and civil money penalties assessed for MSPA violations detected by investigations.
• In 2019, WHD investigators found that employers owed $2.4 million in back wages to 5,000 workers based on violations of the H-2A visa program (nonimmigrant visas for temporary or seasonal farmworkers); employers were assessed $2.8 million in civil money penalties for H-2A violations. In 2019, the number of violations detected in the H-2A program by WHD was a record 12,000. Both back wages owed and civil money penalties assessed for H-2A violations peaked in fiscal year 2013, at $4.9 and $6.6 million, respectively (all in constant 2019 dollars).

2. Agriculture accounts for a much higher share of investigations and violations than its share of total U.S. employment. Average farmworker employment among employers that report to state unemployment insurance agencies was 1.3 million, about 1% of total U.S. employment in 2019. However, over the past 15 years, agriculture accounted for 7% of all federal wage and hour investigations and 3% of the 10 million violations found—three times agriculture’s share of employment.
3. The back wages recovered for farmworkers whose rights have been violated may just be the tip of the iceberg since WHD is underfunded and understaffed. The number of WHD investigations in U.S. agriculture fell to 1,125 in 2019, an average of less than 100 a month, and less than half of the 2,431 investigations in 2000. Given that WHD investigates roughly 1,200 agricultural employers each year out of the 107,000 farm employers that report to state unemployment insurance agencies, a farm employer’s probability of being investigated in any given year is 1.1%. Funding for WHD and the number of WHD investigators has declined in recent years, and the 780 investigators in 2019 were fewer than five decades ago, helping to explain fewer investigations.

4. Despite the reduction in the number of investigations and staff at WHD, the vast majority of investigations of farm employers detect violations, a sign that these employers are not complying with federal wage and hour laws. Some 70% of investigations conducted by WHD in agriculture detected violations, including 40% that detected one to four violations and 30% that detected five or more violations.

5. Farm labor contractors—nonfarm employers acting as staffing firms for farm employers—were the most egregious violators between 2005 to 2019. These employers represent 14% of agricultural employment nationwide but accounted for 24% of all agricultural violations from 2005 to 2019. Farm labor contractors also represented a higher share of agricultural violations than their share of employment in the two major farm labor states, California and Florida—where they accounted for approximately half of all violations over the 2005–2019 period. Farmworkers who are employed by farm labor contractors are more likely to suffer wage and hour violations than those who are hired directly by farms.

6. Violations of federal wage and hour laws vary across areas and commodities. The share of wage and hour violations detected by county and commodity does not necessarily correspond to the share of agricultural employment in that county or commodity. In other words, some counties with relatively lower agricultural employment nevertheless may have a disproportionally high share of violations, and vice versa.

7. A number of “bad apple” employers make life tough for farmworkers. Among the employers that were investigated, the 5% that committed the most violations accounted for half or more of all violations in a particular agricultural industry or commodity, including among farm labor contractors.

Questions for further investigation

Our analysis raises several key questions that merit further investigation with respect to better protecting farmworkers, including:

• Does the low probability of being investigated encourage violations of employment laws? Since only 1.1% of farm employers are investigated in any given year, farm employers reasonably can expect they will never be investigated.
• Without increased funding for WHD, could changes in enforcement strategy improve compliance and worker protections? What is the optimal balance between investigations in areas with more and fewer farmworkers, and between complaint-driven and strategic enforcement that targets likely violators? What are the lessons of WHD’s strategic enforcement strategy during Administrator David Weil’s tenure between 2014 and 2016?

• Are the penalties assessed by WHD for violations sufficient to change behavior and deter others from violating employment laws? If not, what penalties would encourage compliance and deter violations?

• What can be done to improve compliance among the bad apple employers and farm labor contractors who account for the most violations? Should public policy aim to reduce the growth of the farm labor contractor model of farm employment?
• Could more education of workers and employers improve compliance?

Recommendations

We offer the following recommendations for enforcement agencies that could improve compliance with employment laws and better protect farmworkers:

1. FLCs and farms that use FLCs deserve increased scrutiny. Given their disproportionate share of violations, compliance could be incentivized with:
   1. larger fines and more significant sanctions, and making other employers aware of them
   2. adequate enforcement of the joint employment standard under the FLSA to encourage farms to ensure that the FLCs who bring workers to their farms are in compliance.
2. Among all employers and FLCs, examining whether the severity of sanctions is sufficient; increasing the value of civil money penalties should be considered in order to shift penalties from a cost of doing business to an incentive for compliance.
3. WHD should continue to assess and refine strategic enforcement strategies that aim to improve compliance among employers prone to violate employment laws.
4. Repeat violators of employment laws could be required to submit certified payroll data to WHD (as the Davis-Bacon Act requires of government contractors), and be subjected to random payroll audits.
5. Statistical analysis of labor standards enforcement data can formalize investigator rules of thumb about which employers are most likely to violate employment laws, and help investigators more quickly detect irregularities in payroll data. For example, databases that record the average productivity of workers would be helpful to determine whether “ghost” farmworkers on employer payrolls explain extra-high hourly earnings.
6. More could be done to build on the good work done by advocates and unions to educate farmworkers about their rights and the process of reporting violations, perhaps with new and innovative methods like mobile phone apps.

WHD funding and enforcement: Investigations in agriculture and total fines between fiscal years 2000 and 2019

The analysis in this section is based on aggregate data from the enforcement database of the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD). WHD conducted more than 31,000 investigations in U.S. agriculture between fiscal years 2000 and 2019, an average of 1,500 per year, and ordered $76 million to be paid in back wages to 154,000 farmworkers, and assessed $63 million in civil money penalties for violations (in constant 2019 dollars) (U.S. DOL-WHD 2020a).

Figure A shows a clear downward trend in the number of WHD investigations at agricultural worksites over the past two decades, from more than 2,000 a year in the early 2000s to 1,100 per year the last two fiscal years.

Figure A

What explains fewer investigations of farm employers? While labor enforcement priorities vary by administration, funding for WHD has lagged behind the growth of the U.S. labor force. In inflation-adjusted dollars, WHD’s budget in 2020 was $13 million less than it was in 2012.3 Figure B shows that in 2019 there were only 780 WHD investigators enforcing federal labor standards, 32 fewer than in 1973 (U.S. DOL-WHD 2020e). Hamaji et al. (2019) note that in 1978, there was one WHD investigator for every 69,000 U.S. workers; by 2018, there was one investigator for every 175,000 U.S. workers.

Figure B

Nonetheless, Figure C shows that the total back wages owed for all violations of federal employment laws has been on a generally upward trend, peaking at $8.4 million in FY2013, the same year that civil money penalty assessments peaked at $8.0 million. Annual back wages and CMPs were between $3.8 million and $6.7 million over the past five years.4 Figure D shows that the number of farmworkers who were owed back wages peaked at 12,000 in FY2014, and was just under 9,000 in FY2019.

Figure C

Figure D

Three states with large agricultural sectors accounted for 41% of WHD agricultural investigations over the past two decades: Florida had 18%, Texas 12%, and California 11%. North Carolina and New York each had 5% of investigations, and Georgia, New Jersey, New Mexico, Pennsylvania, and Virginia each accounted for 3%.

Violations of the Migrant and Seasonal Agricultural Worker Protection Act

Over the past two decades, back wages owed to farmworkers and civil money penalties assessed have been rising for violations of the United States’ main law protecting farmworkers, and for violations of regulations governing H-2A, the main temporary work visa program for farmworkers.

About 45% of the agricultural investigations over the past two decades found violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), the major federal law that protects U.S. farmworkers. In the peak year of FY2014, more than half of investigations revealed violations of MSPA; there were an average 14 violations on the farms with MSPA violations. Over the past 20 years, the average number of MSPA violations per farm with violations was eight.

Table 1 presents data on MSPA investigations, violations, and penalties, and shows that back wages owed to workers for MSPA violations peaked at $1.3 million in FY2019, when civil money penalties for MSPA violations also peaked at $2.9 million. In FY2019, employers were ordered to provide back pay to 2,253 workers, an average of about $570 each.

Table 1

Table 1 also shows that the total back wages owed and CMPs assessed for MSPA violations have fluctuated quite a bit over the past two decades, but increased significantly in FY2019, when back wages peaked at over $1 million for the first time. Over that time frame, WHD assessed nearly $25 million in CMPs for MSPA violations, which exceeded the amount of back wages owed to workers for MSPA violations, $10 million.5

Violations of the H-2A regulations

WHD enforces H-2A regulations that protect labor standards for migrant workers with H-2A visas and U.S. workers vis-à-vis the H-2A program. The H-2A workers’ share of the total farm labor workforce has grown rapidly over the past decade. In 2019, more than 200,000 H-2A workers were employed in the United States, for an average of six months each.6 Numerous reports from advocates, journalists, and government audits have revealed violations of employment laws that protect H-2A workers, who rarely complain because they lose their right to be in the United States if they lose their jobs (see, for example, Garrison, Bensinger, and Singer-Vine 2015; GAO 2017; Bauer and Stewart 2013). This means the H-2A violations detected by WHD investigators likely underreport the true extent of wage and hour violations by H-2A employers.7

About 11% of the agricultural investigations conducted over the past two decades found employer violations of H-2A regulations. The share of investigations that detect violations is rising, reaching 38% in FY2019, while there was an average of 34 violations per investigation that found at least one H-2A violation.

Table 2 shows that back wages owed to workers based on H-2A violations (which may have been owed to H-2A workers and/or U.S. or unauthorized workers) peaked at $4.9 million in FY2013, while CMPs for H-2A violations peaked in the same year at $6.6 million. The number of workers receiving back wages for H-2A violations peaked at almost 5,000 in FY2019, when the average employee who received back wages for an H-2A violation was awarded $485. The highest back wages assessed per employee was in FY2013, when an average of $1,100 was owed to each of the 4,400 workers who were owed back pay. Over the past two decades, the total CMPs assessed by WHD amounted to more than $31 million for H-2A violations, which exceeded total back wages of more than $24 million.8

Table 2

Figure E is based on the same data as Table 2 and shows the fluctuation of back wages owed based on H-2A violations between fiscal years 2000 and 2019. There is no statistically significant trend in the amount of back wages owed to workers based on H-2A violations between fiscal years 2000 and 2019.9 H-2A workers are in the United States an average of six months, and they earn roughly $2,000 to $3,000 a month, or $12,000 to $18,000 during their average six months in the United States, so back wages of $485 (the average in FY2019) equal 3% to 4% of total earnings during their term of employment.

Figure E

Violations of other employment laws

WHD enforces the Fair Labor Standards Act (FLSA) and other employment laws, and WHD investigators found more than 114,000 violations of MSPA and H-2A rules on 9,330 farm establishments over the past two decades (see Table 3). Farm employers were ordered to pay nearly $42 million in back wages to 71,600 farmworkers, and they were assessed almost $6 million in civil money penalties. Violations of the FLSA are grouped together with other violations in the data, so we cannot distinguish them from other employment law violations.

Table 3

Two decades of aggregate WHD data on farm labor enforcement reveal three major patterns

Our analysis of WHD’s aggregate data on enforcement from fiscal years 2000 and 2019 revealed three notable patterns.

First, as shown in Figure A, the number of WHD investigations in U.S. agriculture has fallen below 1,200 a year—to an average of less than 100 a month—in the last two years. Nevertheless, the data show that agriculture accounts for a much higher share of investigations and violations than its share of employment. The Census of Agriculture (COA) reported more than 500,000 farm employers in the United States in 2017 (Rural Migration News 2019), and 107,000 agricultural establishments were registered with state unemployment insurance agencies in 2019, according to the Quarterly Census of Employment and Wages (QCEW) (BLS-QCEW 2020a). Average farmworker employment according to the QCEW was 1.3 million, about 1% of total U.S. employment in 2019. However, agriculture accounted for 7% of all federal wage and hour investigations and 3% of the 10 million federal wage and hour law violations found over the past 15 years—three times agriculture’s share of employment (BLS-QCEW 2020a; U.S. DOL-WHD 2020a).

Using the QCEW number of establishments as a reference for the number of agricultural employers, means the probability of any single farm ever being investigated for federal employment law violations in a given year is low: 1.1%. The QCEW number of agricultural establishments includes only those required to register and pay unemployment insurance taxes, and is thus only a fifth of the agricultural employers in the COA. Thus, our estimate of 1.1% likely overstates the likelihood that an agricultural employer will be investigated.

Second, violations of MSPA are found on almost half of the farms inspected, and the civil money penalties assessed for MSPA violations are more than twice the amount of back wages owed to farmworkers.

Third, the share of agricultural investigations that find violations of H-2A regulations is rising sharply. Between fiscal years 2000 and 2019, H-2A violations resulted in back wages owed that average $7,300 per farm with violations, and $9,400 per farm in CMP assessments.10 However, U.S. farmers pay about $40 billion a year in wages to farmworkers (USDA 2017). Given that total wage bill, the $6 million in back wages and $6.3 million in CMPs that employers were required to pay In fiscal 2019 (see Figure C) were a miniscule share of the annual overall wage bill.

Fifteen years of detailed data on the outcomes of farm labor investigations

This section draws on the analysis of a WHD database that summarizes the outcomes of more than 294,000 investigations between fiscal years 2005 and 2019 in both the public and private sectors (U.S. DOL-WHD 2020f). Entries for each investigation include the employer’s contact information, NAICS industry code, and details of the investigation, such as the number of violations found, how many workers were affected, what back wages were owed, and the civil money penalties assessed on employers.

Federal farm labor investigations between fiscal years 2005 and 2019

The 294,000 investigations over 15 years in all U.S. industries found more than 10 million violations. About 5% of all violations in the database, 530,000, were found at a single Wells Fargo Bank branch in Roseville, Minnesota, in 2012–2013.

Some 19,250 WHD investigations between fiscal years 2005 and 2019, about 6.5% of all investigations, had an agricultural NAICS industry code associated with them, from 1111 for Oilseed and Grain Farming to 115310 for Support Activities for Forestry. More than 10% of the 17,000 farming operations that were investigated were visited multiple times. These agricultural investigations detected a total of 229,000 violations of the three major federal labor standards laws or regulations that apply on farms: the FLSA (22% of all violations), MSPA (30%), and H-2A program rules (33%).

Figure F shows the number of MSPA, H-2A, and FLSA violations in agriculture detected by WHD from fiscal years 2005 to 2019, and finds the number of detected violations of all three laws peaked during fiscal years 2011, 2012, or 2013. The number of detected violations in all three categories reached a record low in fiscal 2019, declining as the number of investigations in agriculture declined.

Figure F

Figure G groups the number of violations found per investigation during the FY2005–FY2019 period, from zero to more than five violations per investigation. When looked at this way, the data reveal a U-shape among the violators, with almost 30% of investigations bunched at the zero and 31% bunched at more than five violations; those two ends of the spectrum account for almost two-thirds of the violations, while 17% of investigations found one violation and 23%, nearly a quarter, found two to four violations. However, overall, the data show that 70% of all investigations detected violations, while 30% detected zero violations. In addition, it should be noted that this figure does not account for the severity of the violations or the amounts assessed. In other words, some investigations that detected one or two violations may have detected egregious violations and found employers owing large amounts of back pay, while investigations that detected with five or more violations may have resulted in smaller amounts of back wages owed.

Figure G

We reviewed the average number of violations per investigation by state. Figure H shows that the highest number of average violations detected per investigation were not in the five states with the most farm employment. In other words, the WHD investigations that detected the most violations per investigation were not always in the states with the most farmworker employment. It stands to reason that the distribution of violations may be related to the distribution of resources among regional WHD offices, and/or it may be related to differing approaches and priorities among regional WHD offices.

Figure H

Farm labor contractors between fiscal years 2005 and 2019

Farm labor contractors (FLCs) are nonfarm employers that act as staffing firms for farm employers. For FLCs, which correspond to NAICS code 115115, average employment was 181,000 in 2019, according to the QCEW (BLS-QCEW 2020a); FLCs are a subset of the Support Activities for Crop Production category (NAICS 1151), which had average employment of 342,000, meaning that FLCs accounted for 53% of U.S. crop support services employment.

FLCs accounted for 14% of total average employment in UI-covered agriculture of 1.3 million in 201911—including employment in both crops and animal agriculture—but accounted for one-quarter of all employment law violations detected in agriculture (24%). Thus, the share of agricultural employment law violations committed by farm labor contractors was 10 percentage points greater than the FLC share of average annual agricultural employment. In practical terms, that means that farmworkers employed by FLCs or on farms that use FLCs are more likely to suffer wage and hour violations than farmworkers who are employed by farms directly.

We found that 75% of all WHD investigations of FLCs detected violations, while 25% of investigations detected zero violations. We grouped the number of violations detected per investigation of FLCs, as shown in Figure I. The share of investigations of FLCs that found zero violations, at 25%, was significantly less than the share of investigations of FLCs that found five or more violations, 36%. Nearly two-fifths of investigations detected either one violation or two to four violations.

We reviewed the average number of violations detected by investigations of FLCs by state. Figure J shows that when violations committed by FLCs are found as the result of an investigation, the highest number of average violations per investigation were not in the five states with the most agricultural employment.

Figure I

Figure J

FLCs bring workers to farms, but we do not have data on the commodities grown on the farms where FLC employees work. We know that most FLC employees work on fruit and vegetable farms, since these commodities require the most seasonal workers that FLCs specialize in providing. For this reason, we cannot directly compare FLC violations with violations committed by crop farms, or citrus farms, because crop and citrus farms both may hire workers directly and use FLCs to obtain workers.

However, if we consider FLCs as a unique NAICS code (115115) and compare the FLC code to others, then FLCs top the list when it comes to federal wage and hour violations, followed by Vegetable and Melon Farming (NAICS 1112) employers, at about 15% of all agricultural violations, and where average employment of 93,000 was 7% of the 1.3 million total UI-covered agricultural employment in 2019. Ten percent of violations were in Poultry and Egg Production (1123), almost all associated with a single employer, Perdue Foods. Four six-digit NAICS industries each accounted for 4% of all employment law violations: Berry (except Strawberry) Farming (111334); Apple Orchards (111331); All Other Miscellaneous Crop Farming (111998); and Broilers and Other Meat Type Chicken Production (11232).

Violations by state and county between fiscal years 2005 and 2019

Agricultural employment is concentrated on farms that produce labor-intensive commodities in a handful of states, and in particular, counties within these states. For example, the five states with the highest agricultural employment include more than half of all farm jobs, and the five leading farm counties in California include more than half of the state’s farm jobs. In this section, we examine how employment law violations in agriculture are distributed by state and by county, and take a closer look at Florida and California, and particular counties in California. We also highlight the commodities (by NAICS codes) where federal wage and hour laws are most likely to be violated.

California and Florida had the most violations, and the biggest violators are FLCs

California and Florida each accounted for 14% of the employment law violations detected as the result of WHD investigations nationwide, followed by North Carolina with 10% (due in large part to Perdue Farms), Texas and Washington with 5% each, and Oregon with 4%. These six states accounted for 52% of all employment law violations found in agriculture. In the two states with the highest shares of violations, FLCs accounted for the largest share of the violations detected by WHD investigators. Figure K shows that FLCs accounted for 48% of the total violations in California during fiscal years 2005 to 2019, and Figure L shows that FLCs accounted for 50% of the total violations detected in Florida over the same period.

Figure K

Figure L

Figures M1–M3 compare each California county’s share of agricultural employment and its share of employment law violations detected by WHD. Counties with a small share of agricultural employment can have a larger share of employment law violations—in other words, the correlation between the two is far from perfect. For example, Siskiyou and Lassen counties have a far higher share of the employment law violations than their shares of agricultural employment, while the major farm employment counties of Fresno, Kern, and Tulare have a smaller share of violations than their shares of agricultural employment.

Comparing each county’s share of FLC violations with its share of FLC employment tells a similar story. FLC employment is concentrated in the state’s major farm employment counties of Kern, Tulare, Fresno, and Monterey, and these counties also have a high share of all employment law violations committed by FLCs. However, Figures N1–N3 show that, with the exception of Tulare County, the share of FLC violations in leading farm counties is lower than their share of FLC employment, but counties such as Los Angeles and San Bernardino, with relatively small shares of FLC employment, had higher shares of FLC violations. A handful of other counties, scattered primarily throughout the Central Valley, also had a larger share of FLC violations relative to their share of FLC employment.

Figure M1

Figure M2

Figure M3

Figure N1

Figure N2

Figure N3

Probability of finding violations in California agriculture

During the Obama administration and under the leadership of WHD Administrator David Weil, the WHD developed a more strategic approach to labor standards enforcement, emphasizing investigations in industries and areas where there were likely to be employment law violations. We used the enforcement data to examine the probability that violations would be found among employers of particular commodities in California, as reflected in their NAICS codes.

Table 4 shows the probability that a violation is detected during an investigation by commodity or NAICS category.12 FLCs are not a commodity because they supply farmworkers to employers who grow many commodities, but they are included for comparison purposes. The highest probability of finding a violation is 72% for fruit and tree nut farming, followed by 64% for vegetable and melon farming investigated. More than half of greenhouse, nursery, and floriculture operations that were investigated, and more than half of animal production and aquaculture that were investigated, had one or more employment law violations.13 In the case of FLCs, almost 85% of California FLCs that were investigated had at least one employment law violation, as did 72% of other crop support service employers that were investigated (excluding FLCs). In sum, most agricultural investigations find violations, and farms that utilize FLCs are where the probability of finding violations is the highest. (If the violations committed by FLCs were categorized under their corresponding commodities, an even higher share of fruit and vegetable farms would have had violations.)

We calculated the probability that an investigation would find at least one violation in the top 10 agricultural counties in California.14 Table 5 shows that more than half of all agricultural investigations in each of these California counties found violations, ranging from roughly 60% of investigations in Imperial and Ventura counties to 80% or 90% in Fresno and Tulare counties.

Table 4

Table 5

Investigations and fines of repeat violators

One useful metric to determine whether WHD’s enforcement efforts are succeeding in educating and encouraging employers to follow the law is the degree to which individual employers continue to violate the law or come into compliance after repeat investigations. The WHD data allow us to track violations and fine amounts over time for employers that were investigated multiple times.

Our analysis of these data does not find any consistent compliance patterns for individual employers in terms of back wages owed per employee after repeat investigations. For example, some farm employers were investigated multiple times and never found to owe back wages, while others owed back wages in 75% or more of investigations. However, none of the employers investigated more than five times owed back wages after each investigation.

To illustrate this lack of a pattern, we show several agricultural employers in the Rio Grande Valley of Texas that were investigated more than 50 times between fiscal years 2005 and 2019. Figure O shows that J&D Produce (Little Bear) was investigated nearly 120 times, with two investigations finding average back wages owed to each affected employee of $46 and $113. Figure P shows that Frontera Produce was investigated more than 50 times and was assessed back wages of $471 per affected employee in only one investigation. Figure Q shows that Rio Fresh was investigated more than 60 times, and four times was found to owe back wages of $72, $28, $45, and $54 per affected employee—rather small amounts.

Figure O

Figure P

Figure Q

Figures O–Q show there was no pattern to back wages owed per affected employee for farms that were investigated multiple times. For example, J&D Produce was investigated more than 40 times before any back wages were found to be owed, and then investigated another 60 times before more back wages were found to be owed. The data do not indicate a declining pattern of back wages owed as farms came into compliance; sometimes zero back wages were owed after an investigation, punctuated by one or two subsequent investigations that found back wages owed.

Stockton, California-based FLC Jose M. Magdaleno was the most investigated agricultural employer in the state. Figure R shows that the first five investigations of Magdaleno found back wages of up to $320 per employee due, after which there were 10 investigations with no back wages assessed, followed by a more recent investigation that found back wages of $94 owed per affected employee. While the amount of back wages associated with Magdaleno had a general downward trend, the most recent investigations still found significant amounts of back wages owed to workers. Some California farm employers, including Sun World International, Richard Bagdasarian Inc., and OM Contracting, were investigated more than five times, and no back wages were found to be owed to employees.

Figure R

As noted, FLCs account for 14% of average employment in U.S. agriculture but for one-quarter of the federal employment law violations found in U.S. agriculture, and about one-half of the violations found in California agriculture. However, most of the FLCs that were investigated more than five times between fiscal years 2005 and 2019 had zero violations. For example, the same data set used to create the figures showed that Delano-based Roberto Ramirez was investigated 15 times and had zero back wages assessed. Figure S shows that Jaime Ybarra owed zero back wages after the first eight investigations, but was found to owe more than $1,600 and $1,200 per employee during the ninth and 11th investigations, respectively.

Figure S

The other questions we examined with these data relate to civil money penalties (CMP), which are monetary fines levied by WHD to deter employers from violating employment laws. There is little evidence that stiffer penalties have been associated with increased compliance with federal employment laws, but Galvin (2016) found that stiffer penalties and more robust enforcement at the state level is associated with a lower incidence of wage and hour violations. We first asked whether the amount of total CMPs assessed in an initial investigation reduced the probability of an employer being investigated again, and then, for employers found in violation of at least one employment law, whether the amount of CMPs owed in the first case with violations reduced their probability of being found in violation in a subsequent investigation. We confined the analysis to the 10 states with the most employment law violations in agriculture; they collectively account for half of the agricultural investigations in the WHD database.15

We constructed two dependent variables and two explanatory variables. The first dependent variable takes on the value of 1 if an employer was investigated more than one time and zero otherwise, while the second only includes employers found in violation of employment laws in at least one investigation, and takes on the value of 1 if the employer was found in violation of employment laws during at least two separate investigations and zero otherwise—that is, the subset of employers that were repeat offenders. The main explanatory variable used with the first dependent variable was the amount of CMPs owed by each employer (including $0 amounts) during their first investigation, and the main explanatory variable used with the second dependent variable identifies the amount of CMPs owed by each employer (including $0 amounts) during their first investigation with violations.

Table 6 presents the results for the repeat investigation analysis, and Table 7 presents the results from the repeat offender analysis. The results in column (1) in the tables are from simple regressions that do not include any control variables, while the results in column (2) are from regressions that include year fixed effects, which control for unobserved factors that are common to all employers within each year (such as changes to federal immigration policy that affect all employers). The results in column (3) are from regressions that also include state fixed effects to control for unobserved factors that are common to all employers within a state (such as the state minimum wage).

Table 6

Table 7

Table 6 reveals a positive correlation between the amount of CMPs owed and the probability of being investigated again, but the coefficients are very small and not statistically significant at conventional levels of confidence. Table 7 also shows that there is a positive correlation between the amount of CMPs owed and the probability of being a repeat offender, but these coefficients also are close to zero and are not statistically significant. These results suggest that the total amount of CMPs assessed is not statistically linked to a reduction in the probability of being a repeat employment law violator, perhaps because CMP amounts are set too low to deter future violations.

Understanding the impact of the ‘bad apple’ farm employers

We define a “bad apple” as a single employer with a large number of violations or a high share of all violations within a particular industry subsector NAICS code or commodity. The enforcement data show that the bad apple employers account for a disproportionate share of all employment law violations found in every NAICS code between fiscal years 2005 and 2019, including FLCs. In fact, the top 10 violators in a NAICS code, who account for far less than 1% of all investigations in that NAICS code, typically account for 10% to 30% of all violations. Table 8 shows that the 10 farm employers with the most violations accounted for 14% of all agricultural violations found throughout U.S. agriculture, 5% of the back wages owed, and 3% of the CMPs owed.

Table 8

A similar pattern emerges when looking at the data on FLC violations. Between fiscal years 2005 and 2019, there were 4,900 investigations of FLCs with six-digit 115115 NAICS codes across the United States. These investigations found 65,000 total violations, but as Table 9 shows, just 10 FLCs accounted for 16% of all violations and 10% of the back wages owed. The top four accounted for 9% of all FLC violations: Urenda’s Farm and Forest Contractors in Oregon, Global Horizons Inc. (operating in several states), T Bell Detasseling in Iowa, and Escamilla & Sons in Arizona.16

Table 9

We also examined the outcomes of FLC investigations in California and found a similar pattern. There were 850 total investigations of California FLCs (115115) between fiscal years 2005 and 2019 that found a total of nearly 19,000 violations. Fifteen percent of California FLC investigations found zero violations while 85% found a violation: 9% were found to have one violation, and more than half found five or more violations (U.S. DOL-WHD 2020f). Table 10 shows that 10 FLCs accounted for more than one-quarter of the 19,000 total violations found to have been committed by FLCs in California and 22% of the back wages owed as a result of those violations. Cal West Farm Management Inc. had the most violations, 776, while Global Horizons Inc. owed the most in back wages, $164,000 (in $2019).

Table 10

Some employers had zero violations each time they were investigated, some were investigated many times and had violations during a few of these investigations, and some had violations almost every time they were investigated. Twenty-four percent of the investigations found violations that did not result in back wages or civil money penalties owed (see Table 11). Of the investigations that found at least one violation but did not result in back wages or civil money penalties owed, 64% found violations of MSPA, 35% found violations of FLSA, and 15% found violations of H-2A laws.17 (These percentages add up to more than 100% because some investigations detected violations of more than one law.) We do not know enough about the cases to explain why so many violations do not result in back wages or CMPs owed.

Table 11

The next two figures highlight the bad apple issue by showing that the top 5% of wage and hour violators in agriculture, as measured by the number of violations, account for half or more of all the violations found in a particular agricultural NAICS code, either a commodity or for FLCs. (The Appendix provides additional examples for other agricultural NAICS codes.)

Figure T shows that 30% of the U.S. crop farms investigated between fiscal years 2005 and 2019 had zero violations, while the 5% of U.S. crop farms with the most violations accounted for almost 70% of all violations detected on U.S. crop farms. Figure U shows the same pattern for FLCs, with the top 5% of FLCs measured by violations accounting for 65% of all violations among FLCs. For other individual commodities and agricultural NAICS codes, as shown in the figures in the Appendix, the top 5% of employers with the most violations accounted for 47% to 87% of all violations.

Figure T

Figure U

Comparing shares of violations and employment by commodity

WHD investigators record the major commodity (by NAICS code) of the employer being investigated or whether the employer was an FLC. We summed violations by NAICS code between fiscal years 2005 and 2019 and compared the share of violations in each commodity with its share of average employment in 2019 from the Quarterly Census of Employment and Wages—FLCs are not a commodity, so we separated them out for comparison.18 The results are in Table 12, and they show that some commodities that account for a very small share of farm employment, as with sheepherding and forestry, account for a high share of farm labor violations found, so that their share of violations is four to eight times their share of employment. (In Table 12, a ratio that exceeds 100% means that the commodity or NAICS category has a higher share of violations than its share of agricultural employment.)

Table 12

The share of WHD violations found in NAICS 1124, Sheep and Goats, is eight times the sheep and goats’ share of QCEW employment. Many sheep and goat farmers rely on H-2A workers from Peru and other countries to tend their sheep, often on public lands. Two associations, Mountain Plains Agricultural Services and the Western Range Association, handle recruitment and paperwork for their member farmers, most of whom employ fewer than five H-2A sheepherders (each of whom is usually provided with a mobile trailer to tend a flock of around 1,000 sheep).

The NAICS category with the next largest share of violations—two to four times its share of employment—was 1132, Forest Nurseries and Gathering of Forest Products, and 1153, Support Activities for Forestry. Almost all of the violations in NAICS 1123, Poultry and Egg Production, were at a single Perdue Farms facility.

The share of violations was twice the share of employment in Vegetable and Melon Farming, NAICS 1112. Other commodities with a higher share of violations compared with their share of employment include the “other crop farming” classification,19 timber tract operations, and fruit and nut crops. For farm labor contractors, NAICS 115115, the share of violations was 1.7 times their share of employment. For crop support services, which include FLCs as well as custom fertilizer and combining businesses and farm management companies, the share of violations was 1.1 times their share of employment, likely reflecting FLC violations.

Commodities with very low shares of violations relative to their share of employment include cattle and dairy, hogs and pigs, and animal support services. The relatively small logging, fishing, and hunting and trapping sectors also had a smaller share of violations compared with their share of agricultural employment.

We can make the same comparisons between the share of violations and the share of employment by NAICS code for individual states, which we have done here for California and Florida. WHD detected 39,300 violations of employment laws in California agriculture between fiscal years 2005 and 2019; average QCEW agricultural employment in California agriculture was 423,935 in 2019.

In California, shares of employment law violations by commodity or by FLCs differ from shares of employment. Table 13 shows the share of violations and the share of employment by commodity in California, as well as for FLCs. Almost half of the violations discovered by WHD in California agriculture were found to have been committed by FLCs, which accounted for 36% of QCEW employment, making the ratio of the FLC share of violations to the FLC share of employment 1.3. (However, if the violations committed by FLCs were categorized under their corresponding commodity, the violations found in those commodities would be proportionally higher.)

Table 13

Table 13 shows that the highest ratio of share of violations to share of employment was in timber tract operations, where WHD found 185 violations over 15 years even though employment in timber tract operations averaged only 26 in 2019. Forest nursery and forestry support were similar: each had high shares of total violations and a very low share of average employment. Sheep and goats, other crops (which includes tobacco and cotton), and other animals (which includes horses) also had shares of total violations that were twice their share of employment. Fruit and nut crops, and vegetables and melon crops, had shares of violations that were 20% to 30% higher than their share of average employment.

Table 14 shows the share of violations and share of employment by commodity in Florida, as well as for FLCs. Average QCEW agricultural employment in Florida agriculture in 2019 was 67,300; Table 14 shows that WHD detected 38,300 violations in Florida agriculture between fiscal years 2005 and 2019.

Table 14

Half of the WHD violations in Florida agriculture were found to have been committed by FLCs, which accounted for less than 4,000 average employees or 6% of QCEW agricultural employment, making the FLC share of violations almost nine times its share of employment. However, FLC agricultural employment is artificially low in the Florida QCEW data because the state of Florida exempts employers of H-2A workers from the UI system (Rural Migration News 2020a). Florida is certified to fill about 25,000 jobs a year with H-2A workers and, if these H-2A workers are in the state for an average of six months, there would be 12,500 additional full-time equivalent (FTE) jobs showing up in the data, meaning average agricultural employment in Florida would be 12,500 higher, for a total of 80,000. If all of these 12,500 FTE-jobs for H-2A workers were positions working for FLCs, the average employment for FLCs would be 16,350 or 24% of the state’s total, and the ratio of share of violations to share of employment would fall to 1.2 (or 118%).

The highest ratio of shares of violations to shares of employment was on grain crop farms, with a four-times-higher share, followed by fruit and nut crops and forest nursery activities. Vegetable and melon crops had a lower share of violations than their share of agricultural employment.

To give a brief example from a smaller farm state, Iowa, WHD found 3,000 violations of employment laws there between FY05 and FY19, while average QCEW agricultural employment in Iowa in 2019 was 21,000. Three-fourths of the Iowa wage and hour violations in agriculture were committed by FLCs, who had average annual employment of 345, or less than 2% of QCEW agricultural employment for the state, making the FLC share of violations 45 times the FLC share of agricultural employment in 2019 over 15 years (however it should be noted that Iowa also excludes H-2A employment from the QCEW, meaning that employment is likely higher and the ratio likely lower). Violations in the hogs and pigs NAICS code accounted for 15% of violations found, but a quarter of 2019 agricultural employment, followed by poultry and eggs, 4% of violations and 16% of employment, and cattle and dairy, less than 1% of violations and 15% of employment (BLS-QCEW 2020a; U.S. DOL-WHD 2020f).

Conclusion and recommendations

These WHD enforcement data show that agriculture accounts for a higher share of labor violations than its share of U.S. employment. Average QCEW farmworker employment of 1.3 million was about 1% of total U.S. employment in 2019, and the 107,000 agricultural establishments registered with unemployment insurance (UI) authorities were 1% of the almost 10 million UI-registered establishments.20

Using this measure of employment, agriculture accounted for 7% of all federal employment law investigations and 3% of the 10 million federal employment law violations found over the past 15 years—three times agriculture’s share of U.S. employment. But since the number of WHD investigations in agriculture decreased to about 100 farm employers per month, the probability that any farm employer will be investigated in a given year is only 1.1%.

The major explanation for the decline in WHD agricultural investigations is likely reduced funding for WHD, which has not kept up with the growth of the labor force and the need to investigate wage and hour violations. Our analysis of WHD enforcement data suggests that more funding for WHD could increase the number of investigations and violations detected, which would reduce the billions of dollars per year in wage theft that occurs (Cooper and Kroeger 2017) and diminish the advantages that accrue to employers who violate the law to reduce their labor costs.

Most WHD investigations in agriculture find violations—70% of all investigations—while roughly 30% of the farm employers who were investigated had zero violations. In addition, 30% of all farm employers that WHD investigated committed five or more violations.

FLCs are the most common violators of federal wage and hour laws in agriculture: they accounted for one-seventh of average agricultural employment and 24% of all federal wage and hour violations. In other words, we know that at least a quarter of employment law violations occur on farms that hire farmworkers through FLCs. FLCs accounted for a disproportionately high share of agricultural violations relative to their share of employment, both nationwide and in the two states with the most farmworker employment, California and Florida.

The FLC model of employment may increase the incidence of employment law violations by separating the main beneficiary of the labor provided by farmworkers—the farm operator or “lead” employer—from the farmworkers who perform the work. Farms that rely on FLCs are a textbook example of what Weil (2014b) called a “fissured” workplace, where the relationship between the worker and the lead employer is fissured, or broken, via the use of a temp agency or subcontractor (in this case the FLC). Fissuring often results in lower wages for workers,21 in part because the subcontractor (the FLC) keeps a percentage of the wages earned by the workers, and farm operators do not provide the farmworkers who work on their farms with fringe benefits because they are employees of the FLC. Since FLCs account for a rising share of agricultural employment, fissuring should be a major concern for policymakers.

The enforcement data show that the “bad apple” employers and repeat violators committed a large and disproportionate share of labor violations in every commodity. We also found that the share of employment law violations by county and commodity does not necessarily reflect that county’s or commodity’s share of agricultural employment. One likely explanation for why shares of violations and shares of employment diverge is because the worst violators account for a disproportionately high share of all violations, and they may not be located in the counties or states with the highest levels of agricultural employment.

Our analysis raises several key questions that merit further investigation to better protect farmworkers, including:

• Does the low probability of being investigated encourage violations of employment law? Since only 1.1% of farm employers are investigated in any given year, farm employers can reasonably expect that they will never be investigated.
• Without increased funding for WHD, could changes in enforcement strategy improve compliance and worker protections? What is the optimal balance between investigations in areas with more and fewer farmworkers, and between complaint-driven and strategic enforcement that targets likely violators? What are the lessons of WHD’s strategic enforcement strategy during Administrator David Weil’s tenure between 2014 and 2016?

• Are the penalties assessed by WHD for violations sufficient to change behavior and deter others from violating employment laws? If not, what penalties would encourage compliance and deter violations?

• What can be done to improve compliance among the bad apple employers and farm labor contractors who account for the most violations? Should public policy aim to reduce the growth of the farm labor contractor model of farm employment?
• Could more education of workers and employers improve compliance?

The purpose of this report is to inform and spur a renewed debate about labor standards enforcement in agriculture. However, several recommendations could improve compliance with employment laws on U.S. farms

First, since current investigations and sanctions levied do not deter violations by FLCs (and therefore on farms that use FLCs), bad apple employers, and repeat violators, it may be time for new and revised policies to deal with all three. However, since FLCs are the biggest employment law violators, there should be a special focus and increased scrutiny on FLCs and farms that use FLCs. In addition, compliance could be incentivized if there were larger fines and more significant sanctions, and an improved effort to make other employers aware of the fines and sanctions.

A key strategy in the FLC context is also increasing use of the joint employment standard to hold farms accountable for FLC violations. The Fair Labor Standards Act defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” and allows a worker to have several “joint” employers (U.S. DOL-WHD 2020b). If farm operators are jointly liable for violations committed by the FLCs that bring workers to their farms, they have incentives to police FLCs to ensure they comply with employment laws. Competition between FLCs can lead to an erosion of FLC commissions and employment law violations, so requiring written FLC-employer contracts and posting them online could make it far easier to detect low commission rates that may encourage employment law violations.

Second, among all employers and FLCs, examining whether the severity of sanctions is sufficient and increasing the value of civil money penalties (CMPs) should be considered in order to shift penalties from a cost of doing business to an incentive for compliance. Requiring employers to pay the back wages they owe to their employees simply makes them do what they should have done in the first place. Civil money penalties aim to change behavior and deter future violations. However, U.S. farmers pay $40 billion a year in wages,22 more than $100 million a day, while back wage assessments and CMPs on farms were about $6 million each in 2019, or about $16,400 a day for each, just one-tenth of 1% of daily wages. With CMPs such a low share relative to wage costs, some farm employers and FLCs may have business models that depend on violating laws and expecting not to be detected. Increasing penalties for employment law violations at the state level improves compliance (Galvin 2016), and publicizing fines via press releases for violations can help to change employer behavior (Johnson 2020).

Third, strategic enforcement aimed to move WHD from responding to individual worker complaints to having half or more of WHD investigations be directed at firms likely to violate employment laws. WHD should continue to assess and refine strategic enforcement strategies that aim to improve compliance among employers prone to violate employment laws.

Fourth, after repeat investigations find repeat violators, WHD investigators should be allowed to require offenders to submit certified payroll data, as the Davis-Bacon Act requires of government contractors, to provide early warning of more violations. Repeat offenders also could be subjected to random payroll audits so that investigators could more efficiently pressure bad apple employers into compliance.

Fifth, more and better data could improve the efficiency of enforcement. Statistical analysis of labor standards enforcement data can formalize investigator rules of thumb about which employers are most likely to violate employment laws, and help investigators more quickly detect irregularities in payroll data. For example, one perennial issue is “ghost” workers who perform work but are not on the employer’s payroll, making the workers on the payroll appear to be more productive than they actually are. Databases that record the average productivity of workers would be helpful to determine whether “ghost” farmworkers on employer payrolls explain unusually high hourly earnings. Knowing how many buckets or bins of blueberries and apples a worker typically picks per hour or day could assist investigators who are reviewing payroll records to detect likely violations.

Sixth, more could be done to build on the good work done by advocates and unions to educate farmworkers about their rights and the process of reporting violations, perhaps with new and innovative methods. For example, advocacy organizations have developed mobile phone apps and websites that allow workers to report on particular employers and recruiters;23 perhaps an interactive labor standards app that explains wage and hour laws to farmworkers in appropriate languages and allows them to file anonymous reports and complaints to WHD could be an effective means of increasing reporting to aid WHD with enforcement efforts.

Acknowledgements

The authors are grateful to Bruce Goldstein, Janice Fine, Jennifer Gordon, Muzaffar Chishti, Ross Eisenbrey, David Kallick, Greg Asbed, and Justin Flores, for their insightful comments, observations, and suggestions provided during the drafting of this report. However, no one mentioned here is responsible for the report’s content, and the authors are solely responsible for any errors or omissions.

Appendix: Share of all violations in an NAICS code for top 5% of violators

WHD enforcement data show that a small share of violators accounts for a high share of violations. Agriculture is divided into 30+ NAICS codes, from grain crops to support services for crop and animal production. In each of the NAICS codes with significant farmworker employment, the 5% of violators with the most violations accounted for 50% to 85% of total violations found in that commodity.

Appendix Figure A

Appendix Figure B

Appendix Figure C

Appendix Figure D

Appendix Figure E

Appendix Figure F

Appendix Figure G

Appendix Figure H

Endnotes

1. There are exceptions in some states, including California and New York.

2. WHD enforces wage and hour laws, also known as employment laws, while the Occupational Safety and Health Administration (OSHA) enforces health and safety laws. However, there is one exception: In most states, enforcement authority has been delegated to WHD by OSHA with respect to field sanitation standards in covered agricultural settings (U.S. DOL-WHD 2008).

3. Authors’ analysis of WHD budget data (U.S. DOL 2020). The CPI-U-RS formula for adjusting dollar figures to 2020 were not available at the time of publication. As a result, the 2012 dollar amounts were adjusted to real 2020 dollar amounts using the current unadjusted CPI for the U.S. city average for all items, which can be found at https://www.bls.gov/data.

4. Dollar amounts reported have been adjusted for inflation to constant 2019 dollars using the CPI-U-RS. As a result, the dollar amounts presented here may differ from the amounts reported in the source data.

5. Dollar amounts reported have been adjusted for inflation to constant 2019 dollars using the CPI-U-RS. As a result, the dollar amounts presented here may differ from the amounts reported in the source data. To determine whether there are statistically significant trends, we use two simple linear regression models where the dependent variables are (i) the total back wages owed and (ii) the total CMPs assessed, and the explanatory variable in both models is the continuous time (year) variable. Results are available upon request.

6. Authors’ analysis of data from the U.S. Department of State and the U.S. Department of Labor; results published in Costa and Martin (2020).

7. A recent report by Centro de los Derechos del Migrante, an advocacy group, interviewed 100 H-2A workers and found that all “experienced at least one serious legal violation of their rights, and 94% experienced three or more” (CDM 2020).

8. Dollar amounts reported have been adjusted for inflation to constant 2019 dollars using the CPI-U-RS. As a result, the dollar amounts presented here may differ from the amounts reported in the source data.

9. To determine whether there is a statistically significant trend, we use a simple linear regression model where the dependent variable is the average back wage per employee, and the explanatory variable is the continuous time (year) variable. Results are available upon request.

10. Dollar amounts reported have been adjusted for inflation to constant 2019 dollars using the CPI-U-RS. As a result, the dollar amounts presented here may differ from the amounts reported in the source data.

11. Or roughly 11% of all agricultural employment if workers who are not covered by employers reporting to UI are included (a total of 1.7 million workers).

12. These values are generated by estimating a multivariate linear probability regression model without a constant where the outcome variable is a binary indicator that takes on the value of 0 if an investigation did not result in a violation and a value of 1 if the investigation resulted in at least one violation. The explanatory variables are NAICS code fixed effects, which are binary variables that take on a value of 1 if the employer being investigated was categorized as belonging to a particular NAICS code, and 0 otherwise. The standard errors reported are robust to heteroskedasticity.

13. For Table 4, the commodity and type of employment reflect corresponding North American Industry Classification System (NAICS) codes associated with violations, or a combination of codes listed here: Vegetables and melon farming (NAICS 1112); Fruit and tree nut farming (1113); Greenhouse, nursery, and floriculture production (1114); Animal production and aquaculture (112); Support activities for crop production (non-FLC) (1151 excluding 115115); and Other crops (1119, 1131, 11199, 111199, 111940, 111991, 111998). Non-FLC crop support services include cotton ginning, soil preparation, crop harvesting by machine, other post-harvest activities, and farm management services.

14. These values are generated by estimating a multivariate linear probability regression model without a constant, where the outcome variable is a binary indicator that takes on a value of 0 if an investigation did not result in a violation, and a value of 1 if the investigation resulted in at least one violation. The explanatory variables are county fixed effects, which are binary variables that take on a value of 1 if the investigation was conducted in a particular county and a value of 0 otherwise. The standard errors are robust to heteroskedasticity.

15. Some employers that were investigated multiple times had names that were entered into the database with minor typographical inconsistencies. As a result, we corrected for 150 of these inconsistencies to track repeat investigations and violations of the same employer. Employer names must be identical for the statistical software program we use to identify repeat offenders. For example, the employer “A. Oseguera Company, Inc” also appears in the database as “A. Oseguera Company, Inc.” and “A. Oseguera Company Inc” (note the period in the second name and the lack of a comma in the third name). There is a possibility we did not catch all of the inconsistencies.

16. There are about 3,000 FLCs. However, 10,300 individuals and corporations were registered as FLCs with WHD in June 2020 (U.S. DOL-WHD 2020d). The reason for the discrepancy is that many large FLCs have dozens of supervisors and crew leaders who must register.

17. The database does not contain information about the disposition of the investigations, so we are unable to determine why these investigations did not result in back wages or civil money penalties owed.

18. As noted previously, because FLCs work across a range of commodities that do not get counted as such in these data, the violations by crop reported here are undercounted because they are classified under FLCs.

19. NAICS 1119, Other Crop Farming, includes tobacco, which is a major industry for H-2A employment.

20. The Census of Agriculture (COA) reports more than 500,000 farm employers, including farms that make end-of-year payments to family members and relatives to shift farm income into lower tax brackets. The COA does not generate average employment data, only a count of jobs that last more and less than 150 days on the responding farm.

21. A number of studies show a wage penalty for subcontracted/outsourced workers. For example, see Dube and Kaplan 2010, Goldschmidt and Schmieder 2017, and Drenik et al. 2020.

22. The Census of Agriculture reports $40 billion in labor costs for workers hired directly and for contract labor expenses in 2017; the QCEW reports $45 billion in wages and salaries paid in agriculture, including forestry and fishing.

23. See for example, Contratados.org, created by Centro de los Derechos del Migrante (Center for Migrant Rights), which acts as a “Yelp”-like review site for employers and labor recruiters.

References

Apgar, Lauren. 2015. Authorized Status, Limited Returns: The Labor Market Outcomes of Temporary Mexican Workers. Economic Policy Institute, May 2015.

Bauer, Mary, and Meredith Stewart. 2013. Close to Slavery: Guestworker Programs in the United States. Southern Poverty Law Center, February 2013.

Bernhardt, Annette, Ruth Milkman, Nik Theodore, Douglas Heckathorn, Mirabai Auer, James DeFilippis, Ana Luz González, Victor Narro, Jason Perelshteyn, Diana Polson, and Michael Spiller. 2009. Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities. Center for Urban Economic Development, National Employment Law Project, and UCLA Institute for Research on Labor and Employment, September 2009.

Botts, Jackie, and Kate Cimini. 2020. “Investigation: COVID Rips Through Motel Rooms of Guest Workers Who Pick Nation’s Produce.” CalMatters. Updated September 4, 2020.

Bureau of Labor Statistics (BLS). 2020. Injuries, Illnesses, and Fatalities, “Table 1. Incidence Rates of Nonfatal Occupational Injuries and Illnesses by Industry and Case Types, 2019” [online table]. Accessed October 2020.

Bureau of Labor Statistics’ Quarterly Census of Employment and Wages (BLS-QCEW). 2020a. QCEW Searchable Databases [databases]. Accessed August 2020.

Bureau of Labor Statistics’ Quarterly Census of Employment and Wages (BLS-QCEW). 2020b. “Table A. Coverage Exclusions in 2019, for Selected Workers” [online table], Employment and Wages, Annual Averages 2019. Last modified September 2, 2020.

Cooper, David, and Teresa Kroeger. 2017. Employers Steal Billions from Workers’ Paychecks Each Year: Survey Data Show Millions of Workers are Paid Less Than the Minimum Wage, at Significant Cost to Taxpayers and State Economies. Economic Policy Institute, May 2017.

Centro de los Derechos del Migrante Inc. (CDM). 2020. Ripe for Reform: Abuses of Agricultural Workers in the H-2A Visa Program. April 2020.

Costa, Daniel. 2020. “Trump Administration Looking to Cut the Already Low Wages of H-2A Migrant Farmworkers While Giving Their Bosses a Multibillion-Dollar Bailout.” Working Economics Blog (Economic Policy Institute ), April 14, 2020.

Costa, Daniel, and Philip Martin. 2020. Coronavirus and Farmworkers: Farm Employment, Safety Issues, and the H-2A Guestworker Program. Economic Policy Institute, March 2020.

Dorning, Mike, and Jen Skerritt. 2020. “Every Single Worker Has Covid at One U.S. Farm on Eve of Harvest.” Bloomberg. May 29, 2020.

Douglas, Leah. 2020. “Mapping Covid-19 Outbreaks in the Food System.” Food & Environment Reporting Network. April 22, 2020.

Drenik, Andres, Simon Jäger, Pascuel Plotkin, and Benjamin Schoefer. 2020. Paying Outsourced Labor: Direct Evidence from Linked Temp Agency-Worker-Client Data. Econometrics Laboratory, University of California, Berkeley, September 2020.

Dube, Arindrajit, and Ethan Kaplan. 2010. “Does Outsourcing Reduce Wages in the Low-Wage Service Occupations? Evidence from Janitors and Guards.” Cornell University ILR Review, Cornell University. January 1, 2010. https://doi.org/10.1177/001979391006300206.

Evich, Helena Bottemiller, Ximena Bustillo, and Liz Crampton. 2020. “Harvest of Shame: Farmworkers Face Coronavirus Disaster.” Politico. September 8, 2020.

Galvin, Daniel. 2016. “Deterring Wage Theft: Alt-Labor, State Politics, and the Policy Determinants of Minimum Wage Compliance.” Perspectives on Politics, American Political Science Association. June 13, 2016.

Garrison, Jessica, Ken Bensinger, and Jeremy Singer-Vine. 2015. “The New American Slavery: Invited to the U.S., Foreign Workers Find a Nightmare.” BuzzFeed News. July 24, 2015.

Goldschmidt, Deborah, and Johannes Schmieder. 2017. “The Rise of Domestic Outsourcing and the Evolution of the German Wage Structure.” The Quarterly Journal of Economics, Oxford University Press, vol. 132(3), 1165–1217.

Government Accountability Office (GAO). 2017. H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers. GAO-15-154. May 2017.

Hamaji, Kate, Rachel Deutsch, Elizabeth Nicolas, Celine McNicholas, Heidi Shierholz, and Margaret Poydock. 2019. Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers are Fighting Back. Economic Policy Institute, May 2019.

Johnson, Matthew S. 2020. “Regulation by Shaming: Deterrence Effects of Publicizing Violations of Workplace Safety and Health Laws.” American Economic Review, 110, no. 6 (June): 1866–1904.

Rural Migration News. 2019. “Census of Agriculture 2017: Direct-Hire Farm Workers” [blog post], June 17, 2019.

Rural Migration News. 2020a. “A Tale of Two States: Farm Labor in CA and FL” [blog post], March 17, 2020.

Rural Migration News. 2020b. “Hired Farm Work Force Reports, 1945–87” [blog post], July 10, 2020.

United States Department of Agriculture (USDA). 2017. Census of Agriculture. National Agricultural Statistics Survey.

U.S. Department of Labor (U.S. DOL). 2020. FY 2020 Department of Labor Budget Summary Tables.

U.S. Department of Labor Employment and Training Administration (U.S. DOL-ETA). 2018. National Agricultural Workers Survey, Research Report no. 13 and 2015-2016 data files.

U.S. Department of Labor Wage and Hour Division (U.S. DOL-WHD). 2020a. “Agriculture” [csv file] Fiscal Year Data for Wage and Hour Division. Accessed March 26, 2020.

U.S. Department of Labor Wage and Hour Division (U.S. DOL-WHD). 2020b. Fact Sheet: Final Rule on Joint Employer Status under the Fair Labor Standards Act. January.

U.S. Department of Labor (U.S. DOL-WHD). 2020c. Laws Administered and Enforced.

U.S. Department of Labor (U.S. DOL-WHD). 2020d. “Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Registered Farm Labor Contractor Listing” [csv file]. Accessed September 2020.

U.S. Department of Labor Wage and Hour Division (U.S. DOL-WHD). 2020e. Unpublished Excel files provided by WHD staff members to the authors.

U.S. Department of Labor Wage and Hour Division (U.S. DOL-WHD). 2020f. Wage and Hour Compliance Action Data [csv file]. Accessed March 26, 2020.

Weil, David. 2018. “Creating A Strategic Enforcement Approach to Address Wage Theft: One Academic’s Journey in Organizational Change.” Journal of Industrial Relations, 0, no. 0:1–24. https://doi.org/10.1177/0022185618765551.

Weil, David. 2014a. “Testimony of Dr. David Weil, Wage and Hour Administrator, Wage and Hour Division, U.S. Department of Labor, Before the Subcommittee on Horticulture, Research, Biotechnology, and Foreign Agriculture, Committee on Agriculture,” Washington, D.C., July 30, 2014. U.S. House of Representatives. July 14.

Weil, David. 2014b. The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It. Cambridge, Mass.: Harvard University Press.

Thank you again for your recent donation to EPI during the summer tote bag promotion. With the support of donors like you, EPI has been taking steps to maximize our in house capacity and ensure we stretch the resources you have entrusted to us as far as we can.

• Under the leadership of President Thea Mei Lee and EARN Director Naomi Walker, EPI hired Jaimie Worker to serve as Senior State Policy Coordinator, working directly with our grassroots partners to ensure we are getting our research and analysis into the hands of the organizers that need it most to help them pursue policies that support working families.
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Selections of EPI’s latest research and analysis made possible by donors like you

• How well is the American economy working for working people? EPI researchers reflect on the state of labor in the United States
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Highlights from EPI’s November 2018 Research • Power • Justice reception

Nearly 200 guests attended and heard inspirational speeches from leaders working at the forefront of the movement to restore power for working people. Video clips of these speeches appear below.

EPI President Thea Mei Lee opened the evening with a brief history of why EPI is essential to the worker movement and how EPI is evolving to better support our mission in a changing world.

Katie Endicott, a West Virginia teacher, reflected on how she and her fellow teachers stood up for their fellow workers and students when they went on strike this year to demand a living wage and benefits.

Mixed Martial Arts fighter and Project Spearhead founder Leslie Smith shared her experience working to organize her fellow fighters and force the Ultimate Fighting Championship, a multi-billion dollar company, to classify its fighters as employees instead of independent contractors and pay a fair wage and health benefits. The UFC dropped Smith from its roster, but she is not backing down and will keep fighting for what she and her fellow fighters deserve. In April 2019 Smith signed with the rival Bellator league while continuing to fight for union representation for MMA fighters.

The Reverend William Barber II closed the evening reflecting on our fight for economic justice and the soul of the nation. He spoke beautifully about how we need to work together to protect all members of our society, including the rights of all citizens to vote.

EPI is working to develop and advance that policy agenda with the support of donors like you. Thank you.

The federal minimum wage is just $7.25 and has not increased since 2009. The Raise the Wage Act of 2019 passed by the U.S. House of Representatives on July 18 would gradually raise the federal minimum wage to $15 an hour by 2025. EPI research shows that raising the federal minimum wage to $15 an hour by 2025 would lift pay for over 33 million workers across the country—that’s 22.2 percent of the U.S. workforce. The increases would provide an additional $92 billion in wages for the country’s lowest-paid workers, with the average affected worker who works year-round receiving an extra $2,800 a year.

The map below shows the estimated share and count of workers in each congressional district who would receive wage increases if the Raise the Wage Act of 2019 were enacted into law. The map also breaks down the share of workers who would benefit by age, gender, and race. Click on any congressional district to see more information about the workforce that would be affected by the proposed federal minimum wage increase. The table below the map lists all the data for all congressional districts.

Minimum Wage

Note that the map shows where affected workers live, which may be different from where they work. EPI’s Minimum Wage Simulation Model takes these differences into account by using data from the American Community Survey to compare the proposed change in the federal minimum wage with the prevailing minimum wage where individuals work. As a consequence, there may be small numbers of affected workers in congressional districts where the local minimum wage will already exceed $15 in 2025 because some workers living in that congressional district work in a different district. See the methodology for greater detail.

In addition, the Raise the Wage Act of 2019 also gradually raises and eliminates the lower minimum wage for tipped workers. In some jurisdictions that will already have a $15 minimum wage in 2025, there may be tipped workers who would be affected by the change in federal policy because their state or local tipped minimum wage law would still be lower than the proposed federal tipped minimum wage. See EPI’s research on the tipped minimum wage for more information.

Minimum Wage

The map below shows the share and count of workers in each congressional district that would receive wage increases if the Raise the Wage Act of 2019 were enacted into law. The map also breaks down the share of workers who will benefit by age, gender, and race. Click on any congressional district to see more information about the workforce that would be affected by the proposed federal minimum wage increase. The table below the map lists all the data for all congressional districts.

Minimum Wage

Note that the map shows where affected workers live, which may be different from where they work. EPI’s Minimum Wage Simulation Model takes these differences into account, by using data from the American Community Survey to compare the proposed change in the federal minimum wage with the prevailing minimum wage where individuals work. As a consequence, there may be small numbers of affected workers in congressional districts where the local minimum wage will already exceed $15 in 2024 because some workers living in that congressional district work in a different district. See the methodology for greater detail.

In addition, the Raise the Wage Act of 2019 also gradually raises and eliminates the lower minimum wage for tipped workers. In some jurisdictions that will already have a $15 minimum wage in 2024, there may still be tipped workers who would be affected by the change in federal policy because their state or local tipped minimum wage law would still be lower than the proposed federal tipped minimum wage. See EPI’s research on the tipped minimum wage for more information.

The 2019 EARN Conference is being held in downtown Pittsburgh, Pennsylvania—an ideal setting to discuss many of the country’s most pressing questions around economic development and racial equity. This year’s EARNCON is being organized in collaboration with the Economic Policy Institute’s Program on Race, Ethnicity, and the Economy (PREE) to ensure that race and racial justice are front and center in the conference’s discussions of state and local policy.

Pittsburgh is frequently celebrated as a model of progressive change and often appears in lists of the “most livable” and “greenest” cities in the United States. Historically a locus of heavy manufacturing, “Steel City” underwent a dramatic transformation after the deindustrialization of the North and collapse of the steel industry in the 1980s. Pittsburgh successfully leveraged its strong educational and health care institutions to build one of the country’s most vibrant regional economies, one centered on education, technology, and health care. In fact, Pittsburgh’s health care sector today is a larger share of the regional economy than the steel industry was in its heyday. And just as workers joined together in unions to ensure jobs in the steel mills were good, safe jobs, health care workers in Pittsburgh are organizing now for fair pay and benefits.

Yet Pittsburgh is also a place of stark racial divides. The gap in household income between black and white families in the Pittsburgh area is wider than the national average. People of color in the region have disproportionately low rates of employment and homeownership and significantly higher rates of poverty. Pittsburgh’s neighborhoods are some of the most segregated in the country. And as technology and financial services companies have come in, community leaders have had to combat gentrification and involuntary displacement of long-term residents, particularly in historically black neighborhoods.

EARNCON is a three-day gathering that brings together EARN’s nearly 60 groups from 44 states—along with thought leaders on issues related to socioeconomic and racial inequality—to share stories, present research, discuss strategies, sharpen skills, and make plans to advance pro-worker and racial justice policies in the 2020 legislative session and help shape the debate around economic policy in advance of the 2020 state and national elections.

The 2019 EARN Conference continues EARN’s tradition of bringing together leading economic thinkers, policy experts, labor activists, community organizers, faith leaders, and academic researchers to learn from each other and develop strategies and policies that improve job quality and economic security for all workers while addressing long-standing racial disparities in economic outcomes. Building power in states and cities is more important than ever, and EARN is an essential foundation for progressive action across the country.

Conference dates: October 2–4, 2019*

*A pre-conference meeting for EARN state group executive directors, will take place on Wednesday, October 2, from 11:30 am–4:30 pm. A boot camp for EARN data users will be offered on Wednesday, October 2, from 1:00–5:00 pm.

On-site registration for all attendees will open Wednesday, October 2, at 11:00 am. The program will run until Friday, October 4, at 3:00 pm.

Omni William Penn Hotel
530 William Penn Place
Pittsburgh, PA 15219
Tel: (412) 281-7100

 Detailed agenda | Register | Contact the organizers

For EARN members: Click here to access previous years’ conference materials.

With the unemployment rate at 4 percent or below for eight consecutive months, 2018 appears to be the year when the economy finally became healthy again. But while low unemployment is good news, it doesn’t tell the whole story of how typical families are faring in the current economy.

As the economy normalizes following a long, slow recovery from the Great Recession, we are quickly resuming our prerecession course of rising inequality. The fruits of economic growth are bypassing typical families and going straight into the hands of the already-rich.

Our current policy trajectory is doing nothing to reverse the trend of inequality. But it’s doing plenty to widen it. This year’s edition of Top Charts highlights how policy choices continue to exacerbate inequality and how we can achieve more broadly shared prosperity through better policy choices.

The upward march of inequality is firmly reestablishing itself: Cumulative percent change in real annual earnings, by earnings group, 1979–2017

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While top 1 percent earnings took a dive following the Great Recession, by 2017 those earnings had risen to their highest level ever, and the annual earnings of the top 1 percent had risen 157 percent cumulatively since 1979. For the top 0.1 percent, earnings have grown a whopping 343.2 percent since 1979. In contrast, earnings of the bottom 90 percent of workers rose just 22.2 percent over the same period.

The dynamic of large but temporary earnings declines for the highest earners during the Great Recession reflects the composition of their pay packages. For CEOs and other executives in the top 1 and 0.1 percent, earnings include stock options and other compensation measures linked strongly to firms’ stock market performance. As the stock market fell rapidly during the recession, this led to a sharp decline in earnings. But as stock prices went back up, so did the earnings of the top 1 and 0.1 percent—and so did inequality.

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Depending on the state, the average top 1-percenter makes between 12.7 and 44.4 times more each year than the average bottom 99-percenter

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Rising inequality is not just a story of those on Wall Street, in Hollywood, or in the Silicon Valley reaping outsized rewards. Measured by the ratio of top 1 percent to bottom 99 percent income in 2015, every state has a sizable gap between the fortunate few at the top and everybody else. In eight states plus the District of Columbia, that ratio of top-to-bottom incomes is greater than the national ratio of 26.3-to-1.

The post–Great Recession recovery in top incomes—combined with unequal income growth since the 1970s—has America hurtling back toward levels of inequality that characterized the Gilded Age of the 1920s. In five states we’ve already surpassed Gilded Age levels of inequality. EPI research shows that in New York, Florida, Connecticut, Nevada, and Wyoming, the top 1 percent’s share of overall income tops the 1928 overall national record of 23.9 percent. Nationwide, the top 1 percent took home 22.0 percent of all income in 2015.

While the degree of income inequality differs across the country, the causes are mostly common and clear: intentional policy decisions to shift bargaining power away from working people and toward the top 1 percent.

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The Fed can look to the late 1990s for guidance on how to raise wages: Average annual wage growth from 1996–2001 vs. all other years between 1979 and 2017

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Wages grew much more—and more equally—from 1996 to 2001 than in any of the other years between 1979 and 2017. Why? What was different about the late 1990s that policymakers should seek to emulate?

The most important difference was sustained low unemployment. The Fed kept interest rates low, allowing the unemployment rate to fall to levels far below what was considered sustainable for keeping inflation in check. And yet inflation did, in fact, remain in check. The late 1990s also saw an increase in the federal minimum wage, which helped boost wage growth at the bottom.

The Fed’s willingness to tolerate low unemployment, along with the boost to the minimum wage, paid enormous dividends in reducing inequality: annual wage growth for a 20th-percentile worker (1.8 percent) and for the median worker (1.7 percent) approximated that of a 95th-percentile worker (2.0 percent). In contrast, across all other years between 1979 and 2017, average annual wage growth for low- and middle-wage workers was essentially zero, while high-wage workers enjoyed consistently positive (if not hugely impressive) growth.

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Attacks on unions have hurt their ability to hold inequality in check: Union membership and share of income going to the top 10 percent, 1917–2015

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This chart is a dramatic representation of how essential unions are to keeping inequality in check. The growth in union membership in the late 1930s and early 1940s coincided with a falling share of income going to the top 10 percent. A strong labor movement means workers have more power to negotiate with their employers for a proportionate share of income growth. That power is precisely what corporations and policymakers doing their bidding have increasingly been eroding. Attacking unions makes sense from a bottom-line perspective: for corporations, the easiest path to profits is not in achieving greater efficiency and innovation but in suppressing wages.

As union membership has declined over the past 40-plus years, the top 10 percent have captured a greater and greater share of income. Breaking the momentum of rising inequality will require a much-strengthened labor movement. For lawmakers who will form a progressive majority in the U.S. House of Representatives in January 2019, the path is clear: enact ambitious reforms to the laws governing union organizing and collective bargaining to level the playing field and return bargaining power to workers.

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An attack on public-sector unions is an attack on women, teachers, and African Americans: Distribution of unionized state and local government workers

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In recent years, anti-union interests have focused their attack on public-sector workers—the workforce with the highest rate of union representation. In 2018, a small group of foundations with ties to the largest and most powerful corporate lobbies celebrated their newest success: the Supreme Court decision in Janus v. AFSCME Council 31. The court ruling effectively stripped state and local government public-sector unions of their ability to collect fair share fees to cover the costs of representing workers who choose not to join their workplace’s union. By eliminating fair share fees, the ruling goes a long way toward stripping workers of their ability to organize and bargain collectively.

As this chart shows, this attack on state and local government unions constitutes an attack on women, teachers, and African Americans. Women and African Americans make up a disproportionate share of workers in the public sector who are represented by a union (relative to their shares of the private-sector workforce). And while teachers constitute the single largest subgroup of union workers in state and local government, union workers also include those serving the public as administrators, social workers, police officers, firefighters, and other professionals. The good news: actions policymakers take to bolster public-sector unions will disproportionately benefit women, African Americans, and teachers.

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Raising the minimum wage would lift millions of African Americans and Hispanics out of poverty: Black and Hispanic nonelderly poverty rates in 2017, under actual, 1968-level, and a more ambitious minimum wage

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Although the minimum wage is first and foremost a wage-boosting labor standard, it is also a critical anti-poverty tool. Applying new research on poverty’s response to income changes shows that we are consigning millions of people to poverty by not wielding the minimum wage effectively.

The inflation-adjusted value of the federal minimum wage is about 25 percent less today than it was at its peak in 1968. Had policymakers enacted adjustments to keep the 1968 minimum wage rising with inflation, the black and Hispanic poverty rate would be 14 percent lower today—meaning 2.5 million fewer blacks and Hispanics would be in poverty.

Policymakers have proposed going beyond simple inflationary adjustments to raise the federal minimum wage to $15 by 2024. If we had an equivalent policy in place today, we would lift 7.4 million blacks and Hispanics out of poverty.

The call to raise the minimum wage beyond its 1968 level is coming from more than just anti-poverty advocates. Supporters view it as a remedy for widening wage inequality. That’s because the minimum wage affects wages of low-wage workers and workers further up the wage scale by setting a wage floor. Adjusting this important labor standard upward would ensure that typical workers share more in our country’s economic growth.

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Tipped workers fare better when they must be paid the regular minimum wage: How 'one-fair-wage' cities San Francisco and Seattle compare with the District of Columbia

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As policymakers examine options for raising minimum wages, they should not forget about the tipped minimum wage. The federal tipped minimum wage has not been raised since 1991 and is currently just $2.13 per hour. Some cities and states are moving toward “one-fair-wage” policies—which would abolish the subminimum wage for tipped workers and require that all workers be paid the same minimum wage as a base wage, regardless of tips.

But recent proposals to move toward one fair wage in certain cities and states have been met with fearmongering. Critics claim that increasing the tipped minimum wage will destroy jobs or somehow even lower wages for workers in tipped industries. A ballot measure to bring one fair wage to Washington, D.C., was passed by voters but repealed by the city council—who used such claims to defend their decision to ignore the will of the voters.

The evidence behind these big claims is sorely lacking. But there is evidence refuting these claims. San Francisco and Seattle have both implemented one-fair-wage policies. Relative to D.C., there is less inequality between tipped workers and nontipped workers in Seattle and San Francisco, and tipped workers in these cities are much less likely than D.C. tipped workers to be in poverty.

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Behind the teacher strikes is a big teacher pay gap: Teachers are paid less than other college graduates in every state

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A big story in 2018 was the wave of protests by teachers across the United States. These teachers were complaining that state and local governments had starved public education of the funding it needed to be effective. An obvious sign of severe education underfunding can found in the teacher wage penalty: the percent by which public school teachers are paid less than comparable workers. In every single state, the weekly wages of elementary, middle, and secondary public school teachers lags far behind wages of all other workers with a college degree. This teacher wage penalty has grown significantly over time, but is smaller in states with stronger collective bargaining rights for teachers.

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Most U.S. adults do not have a college degree: Shares of 18- to 64-year-olds with a given level of education, 2018

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Every now and then policymakers in Washington will concede that a given economic trend warrants attention because it might harm workers without a four-year college degree. The effect that growing trade flows with less developed countries has on wages is one example. Often, however, this concession to the interests of “noncollege” workers is made with the implicit assumption that workers without a college degree represent a niche interest in the U.S. economy. This assumption is way off base. Two-thirds of working-age people in the United States have less than a four-year degree. Hence, anything that harms noncollege workers is harming the large majority of the American working-age population.

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Our nation still has a long way to go in a quest for economic and racial justice: Social and economic circumstances of African American and white families, c. 1968 and c. 2018

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This year marked the 50th anniversary of the landmark Kerner Commission report, which documented systemic racism in the United States and the economic and social inequities facing African Americans in 1968. The report warned that “our nation is moving toward two societies: one black, one white, separate and unequal,” and called for a commitment to “the realization of common opportunities for all within a single [racially undivided] society.” In a 2018 EPI report, we asked the question: Fifty years later, how far have we progressed toward that goal?

Not nearly far enough. The chart shows that, while African Americans are in many ways better off in absolute terms than they were in 1968, they are still disadvantaged in important ways relative to whites. African Americans today are much better educated than they were in 1968—but young African Americans are still half as likely as young whites to have a college degree. Black college graduation rates have doubled—but black workers still earn only 82.5 cents for every dollar earned by white workers. And—as consequences of decades of discrimination—African American families continue to lag far behind white families in homeownership rates and household wealth. The data reinforce that our nation still has a long way to go in a quest for economic and racial justice.

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Progressive state policies create more broad prosperity than conservative state policies: Since 2010, Minnesota’s economy has outperformed Wisconsin’s

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Policy matters, and this includes state policies. In 2010, the neighboring states of Wisconsin and Minnesota embarked on divergent political paths when voters elected a conservative, Scott Walker, as governor of Wisconsin and a progressive, Mark Dayton, as governor of Minnesota. Because these states were neighbors who had suffered similarly from the Great Recession that began in 2008, their post-recession economic performance provides useful evidence on the effect of divergent policy paths.

Governor Walker and the Wisconsin state legislature pursued a highly conservative agenda centered on cutting taxes, shrinking government, and weakening unions. In contrast, Minnesota lawmakers under Governor Dayton enacted a slate of progressive priorities: raising the minimum wage, strengthening safety net programs and labor standards, and boosting public investments in infrastructure and education, financed through higher taxes (largely on the wealthy). The evidence shows clearly superior performance—faster wage and employment growth—in Minnesota.

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The Trump tax cuts didn't increase investment—but they did increase corporate profit hoarding

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Policy can fight inequality, or it can generate more. And the policy priority of the Trump administration seems to be increasing inequality. Besides an ongoing assault on regulatory safeguards that provide workers needed leverage in labor market bargaining, the signature policy achievement that the administration and congressional Republicans delivered was a large, regressive tax cut for corporations. The Tax Cuts and Jobs Act (TCJA) of 2017 was championed with loud claims that it would boost investment in productivity-enhancing plants and equipment—eventually leading to higher wages for workers. Nearly a year after the act’s passage, the verdict so far is clear: the tax cuts have simply fattened already bloated corporate profits. Productive investment has not been spurred at all.

The top half of the figure shows undistributed corporate profits as a share of corporate-sector value-added (where value-added is a measure of all income—either wages or profits—generated by a corporation). Undistributed corporate profits are profits not immediately passed through to shareholders as dividends and thus available for investing in plants and equipment, or buying back shares of stock, or for other financial engineering. These undistributed profits soared in the wake of the TCJA, largely because it allowed a tax-free repatriation of profits that had been stored offshore. (A similar tax holiday in the mid-2000s led to a similar spike in undistributed profits.)

The bottom half of the figure shows where this profit bonanza did not end up—in investments in productive plants and equipment. The quarterly investment growth rate shows no indication that investment is shifting into a higher gear because of the tax cut.

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Katie Endicott • West Virginia teacher

Leslie Smith • Project Spearhead