The report, released by Laird Townsend, outlines repeated allegations of labor violations made by migrant farm workers against seed giants Monsanto and DuPont Pioneer for work completed under the supervision of farm labor contractors (FLCs). Townsend reviews government documents, Monsanto records and lawsuits in conjunction with expert interviews to show “allegations including broken recruiting promises, minimum-wage violations, improperly withheld pay and substandard living conditions in seed-corn production.”
The day after publication in late June, a federal class action lawsuit was filed against Monsanto on behalf of two migrant laborers.
The class action suit alleges that Monsanto treated farm workers in a manner that violated two federal labor laws: the Fair Labor Standards Act and the Agricultural Workers Protection Act. The Fair Labor Standards Act “establishes minimum wage, overtime pay, record-keeping and child labor standards affecting full-time and part-time workers,” according to the U.S. Department of Labor. The Agricultural Workers Protection Act “protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record-keeping,” while also requiring federal registration of FLCs.
The plaintiffs allege that Monsanto failed to pay the minimum wage, failed to pay when payment was due, did not keep adequate records of payroll and misrepresented the way workers would be paid, originally stated as flat rate pay per acre. Both plaintiffs in the suit worked in the fields on roguing corn plants – removing from the field those plants with undesirable characteristics – and detasseling, which involves taking off the plants’ pollen producing tops. Detasseling is a common method of corn plant hybridization.
Specifically, one plaintiff was promised “good wages and housing” by her contracted recruiter, but found neither enough beds nor enough work. “They said that easily in the first week we would be getting anywhere from $800 to $900 or more depending on how fast we worked. And then to get $300? That was not fair,” said the plaintiff. Conditions in the fields – where 45 workers shared one portable toilet – were also poor.
According to Teresa Hendricks, director of the Michigan Migrant Legal Assistance Project and co-counsel in the suit, the suit is believed to be the first of its kind because it addresses work completed in Missouri, Michigan and Illinois. Damages are estimated to reach $2 million, which Hendricks said could be the highest yet for a suit of this kind. Hendricks points out that the suit could affect hundreds of “similarly-situated migrant agricultural workers who did detasseling work on Monsanto’s corn crops.”
The suit, however, does not list among the defendants the FLCs or Crew Leaders, who big seed companies commonly hire to recruit workers and oversee work on the farms.
Hendricks said FLCs are excluded because “the crew leaders are not the ones with any real control. They are typically undercapitalized and struggle themselves with Monsanto, some have sued Monsanto even for pay.” Hendricks plans to depose them as witnesses in the case. Hendricks believes “the company builds in crew leaders in between Monsanto and the workers … to hide behind contractors to absolve themselves of responsibility for the wage theft.”
The Midwest Center for Investigative Reporting cites that FLCs often have tight margins for employing farm workers and meeting company standards. Townsend found that seed companies can pay FLCs a lump sum without a guarantee of compensating for extra work time necessary to complete the work as required, leaving contractors to determine how to pay workers for their additional labor.
Greg Schell, a Florida lawyer who has represented farm workers for more than three decades, told Townsend that “there is a real incentive for the labor contractors to skim from the workers. The fee paid the contractors by Monsanto and the other seed companies [is] insufficient in many instances for the contractors to pay the workers the wages required by law, pay all taxes and the like, and still make a profit.”
Monsanto not only delegates work to contractors that is typically completed by formal employers (like keeping timesheets and worker payment records) but also repeatedly rehired three contractors against whom workers had filed complaints of labor violations, the report states. According to Townsend’s research, complaints ranged “from paying ‘far fewer hours than they worked’ to ‘failing to provide [required] toilet facilities, hand washing facilities with potable water and cool potable drinking water.'”
Use of FLCs in the seed-corn industry has increased since the 1980s as the demographic of Midwestern farm workers has shifted from local teens to increasingly migrant populations, according to experts in Townsend’s report. FLCs can help as “bilingual go-betweens [and] risk absorbers,” even in such instances as immigration raids, said farm labor statistician Philip Martin of the University of California-Davis.
Townsend said legal aid lawyers find that Monsanto “[does] not explicitly accept liability for all [its] contractors’ actions.” Monsanto representatives communicating with Townsend maintained their stance that FLCs are the employers of the seed-corn farm workers and that these independent contractors are responsible for acting within legal bounds of employment and labor regulations.
Even considering the 2007 appeals court ruling in Reyes v. Remington Hybrid Seed Co., which stipulated that seed-corn companies are responsible for the actions of their contractors in charge of recruitment and supervision of workers, seed-corn companies fail to accept responsibility, according to the lawyers.
Monsanto and other large seed production companies have faced numerous allegations related to violated labor laws in the last decade, the Midwest Center for Investigative Reporting found, with a history of settling individually with workers. “The companies generally deny wrongdoing or claim insufficient knowledge to respond to the allegations,” the report says, and “settlements normally explicitly stipulate no admission of wrongdoing on the part of the defendant.”
In recent years, settlements have become the norm. Illinois Legal Aid attorney Keberlein Gutiérrez believes Monsanto has “built in an amount of roughly $500 per person as an average settlement.” These settlements, which can increase slightly in negotiations, can be irresistible to farm workers, Gutiérrez said, “because a family of four only makes an average of $14,000 a year.”
Legal aid lawyers and experts told Townsend the cases they see are a small sample of all the violations that occur. Migrant workers, one lawyer said, are hesitant to voice concerns out of “fear [of] losing their wages, forfeiting scarce work the subsequent year or being stranded with no funds to get home.” The president of Farmworker Justice told Townsend in the report, “almost any time we talk to farm workers, we find they’re suffering illegal conditions.”
Furthermore, as about half of all farm workers are undocumented, about half of the farm labor force is ineligible for representation by legal aid groups. This is due to mid-1990s Congressional legislation that “has effectively prevented legal aid organizations from representing some legal immigrants and all undocumented workers,” according to Townsend.
The rise of labor contracting systems in the seed-corn industry, say legal aid attorneys, has paralleled the rise in labor violations complaints. However, the experts cited in Townsend’s report expect that labor violations in other crop industries might be even more severely underrepresented by lawsuits than in seed-corn. This is because seed-corn farm workers make a relatively high wage (nearly minimum wage, compared with $2 to $3 per hour for some farm work), meaning positions are disproportionately filled by documented workers.
Furthermore, seed-corn companies tend to be large, with deep pockets and in the public eye, bringing more attention from legal aid clinics. Smaller operations, Gutiérrez told Townsend, might be committing even more serious violations outside of the spotlight.