Teresa Hendricks: Ensuring Equitable and Humane Treatment of Farmworkers and Their Families

Teresa Hendricks, Migrant Legal Aid 

Transcript

Good afternoon everyone! I didn't bring any of my fancy slides so you're going to have to live with just looking at me, how’s that?

I'm the Director and Senior Litigator at Migrant Legal Aid. When I say senior, that doesn't mean that I'm the oldest one, but that is the fact. Our mission is to help the community protect farm workers and we do that with a number of tools, We've been around for 45 years and for the full 45 years our primary mechanism for protecting farm workers has been litigation, because we're lawyers, that’s what we do, and that’s what they train us to do. That's worked well for us for many years and we have done many class action lawsuits in federal court over wage claims.

The types of cases that we do are everything from labor trafficking, child exploitation, pesticide exposure, safe housing, safe working conditions, enforcing the minimum wage, those types of things. But, in the last few years, we have discovered that our old way of doing things, or our first enforcement mechanism, that being litigation, is not even as effective as another tool that we recently discovered, which is remarkably easy to use and a lot less expensive.

My opposing counsel in some of my class action lawsuits has told me that our lawsuit has cost them, their client, their grower, in attorney fees on average $90,000 to $150,000. These cases can take four years because they involve a lot of complex legal issues and they involve as many as, one of my cases has 330 members in a single class. And so, there has to be some solution that we can find where we can reduce the exploitation in the food supply chain and not having to bring up lawsuit that last for four years and cost that much money to each party, because neither the worker nor the grower wants to be involved in that if they can avoid it.

So, this is how we discovered a new tool almost by accident. As the director, I would get the phone call from different reporters and they would say, “we want to do a story on migrant farmers in the family.” I would always have to look at the purpose of the report and then make a decision that if I grant them access to a family (because that’s what they all want right, they say I want to talk to a family and our story's going to be about X). I have to decide “Are you going to help with their story, raise the awareness of the human value of the migrant workforce, or are you going to cross the line into exploitation?” I know you want the cute shot of the beautiful migrant children with the families, but what is my responsibility to my client population?

And this happened, in a big way, a few years back, where I had two producers from New York come to our office and they said, “We want to expose child labor, can you take me to the farm?” I said, “Well first of all, child labor in Michigan, we do have it, but it's not something I can just expose right away.” I saw them as opportunists and I said, “Look, child labor in Michigan is hidden, nobody knows about it, it's not something that the parents are proud of, it's not something that the crew leader wants to show is going on, and it's not something of the grower certainly wants to say is happening in her orchards.”

So, I said, “Go back to your producers and tell him unless you're going to embed with me for an entire summer and do outreach with me, that I'm not interested in participating with you”. I thought they would go away and they didn't, they came back and they were fully funded to embed with us for an entire season.

Our services are mobile law services. Our clients can't make an appointment because they’re working 90 hours a week, they can't make time to come talk to an attorney in Grand Rapids about how they got shorted wages. They’re not going to get permission even from their boss to come talk to me about that. So, two or three times a week, our crew goes out to where the migrant housing and the licensed housing is and often times where it’s not (I've actually found folks in a chicken coop living there), but we try to do a number of touches during the week so that the people get to know us. And because we’ve been around for 45 years, we do have a good reputation of getting them a good remedy, stopping the exploitation without any repercussions to them, even if they’re undocumented.

So fast forward, I told them the trade secrets to finding child labor, and I gave them a sample of the blueberry crop (which is more commonly where you’ll find it).I If there is a production standard that the grower creates which says ‘you have to pick as many buckets per hour to equate the minimum wage’, that’s an unlawful production standard. But what that means is that in the beginning of the season when the crops are light, the children are in the field helping the parents fill their buckets because if not, the parents will be fired. Then, when the fruit is plentiful, midseason, you're not likely to find child labor. But then, at the end as the fruit is trailing off, you might find that again.

So, lo and behold we did come across a farm with many child workers and it was a national story. You can Google it to this day, it’s called the Blueberry Children in the Fields, and it was on Nightline and ABC national news and Democracy Now. There was a big fall out in Michigan from that, in particular with the retailers as they realized (there were three of them, Walmart, Meijer and Kroger) that they had all been buying blueberries from this farm, that were picked with child labor. They had the most adorable children carrying buckets in this report, it was very well done and very moving.

The stores didn't want to think that they had the equivalent of selling goods from a sweatshop and they were very embarrassed by it. I happen to know the inside counsel to Meijer, and he called me and said, “We are really, frankly, embarrassed that we have been buying blueberries from this outfit. We have a corporate social responsibility department, and when we take on vendors as they agree that they're not going to violate the law when they bring products to us, and we don't want to put products on the market that have been gained through exploitation. Can you help us out? Can you let us know next time something is brewing, something big is cooking and you’re about to do a class action or a national news story?”

I thought about it and I thought, ”What is the benefit to my client population if I give them a heads up, and what is the benefit to the store?” So, I decided to work with them, and I said, “If you can contribute to the amount of outreach that we do (because we go through a lot of miles and costs a lot of money every year for outreach program). I can give you real time monitoring of conditions on the ground throughout the summer, and I can also give you information that you won't get from a crew leader or any other coworker.”

The reason for that is because I have a special little tool called the Attorney Client Privilege. People will tell me more than they might somebody else because I can assure them that I will not take information they give me and use it if they don't want me to and in a way that they don't want me to. So, they said, “We would like to support your outreach program” and I said, “OK, we’ll give this a try”.

So, they contributed to what we now call the Fair Food Program of Michigan. The first instance that came up where I gave them a courtesy alert, as we call it, was a farm that had decided to put an armed guard there with a flak jacket and required passage past the armed guard for all of the workers going to the migrant housing and back. In Michigan, that's not the law, anybody has a right to access, you don't have to pass an armed guard, it’s just a migrant camp or housing unit is just like any other apartment complex. I have a right to go up there and knock on the door and see how people are doing.

My normal remedy, my primary tool is to run to the courts. So, I normally would have had to ask for an emergency injunction and run to the federal court. An emergency injunction has a lot higher burden and takes a lot more evidence upfront than you would normally need, because it's such a profound remedy under the law. It would've cost a lot of money and would take a lot of attorneys’ time in and I needed the affidavits of the people, also, that would have benefited from this.

So, I thought, “Well I'm going to take Meijer up on it.” I call their attorney I said, “This is what's happening, this is against the law, my workers have just verified it, we have photos of what’s happening there.” And he said, “What grower is it?” and I gave him the name, and he called me back in 20 minutes and you know what he said? He said, The guard is gone, you can now go through and talk to the workers.” I was dumbfounded. “Really? OK. Well, how did that work?” and he said, “Well it turns out I looked at the list and we were buying from that outfit, and we want no part of that.” I said, “Why was the guard there anyway?” and he said, “The grower selling was trying to comply with Good Agricultural Practices (GAP).”

I thought, “OK, whatever, I really don't care why the guard was there, but the guard was gone and so we rushed in there and said the folks, “What's wrong?” and they said, “Nothing, we were just afraid of the gun and why do we have to pass through the gun.” So really, it would have been a litigation over something that was technically a misunderstanding or a non-issue, and so I thought that was a very good tool to use.

So, we formalized it. We've been using that now in cases where there is a systemic exploitation going on, that I can independently verify, that affects more than just one person's paycheck for the last couple of weeks. We've been using that tool now to voluntarily help eliminate exploitation. So, I have the hammer, with the litigation, but now I have a wonderful carrot.

So, I went to the next largest retailer, because I thought, “Well, I’m batting 100 here, I got Meijer on board, we got 200 stores, where do I go next?” So, I turned to Spartan Nash and I met with their attorneys and they had me do a presentation at the Byron Center office of Spartan Nash, and it was all older white men in the room. My presentation is all about the horrible exploitations and I show them what's really happening in the field, and I thought, “I don’t know if they're going to understand what I'm trying to tell them.”  In the end I said to myself shame on me, because they were number one, they were all extremely happy to know about the actual exploitation that goes on. “You mean kids are sprayed with crop dusters, you mean there's labor trafficking, you mean there’s kids in the field that you've represented, they’re 4 and 6 years old?”

Then, they were even happy to find out that there's a remedy, they can be part of the solution, that is voluntary, and that they can have their eyes and ears through us about what's happening, and they can help stop, in real time, any exploitation. So Spartan Nash said, “We're not only wanting to join your Fair Food Program, but we want to take a pledge.” So, we came up with a five-paragraph pledge that they have said, “We are devoted to making sure that our products are brought to market without exploitation.”  I worked with their attorneys for developing this pledge.

And then they asked me to take it throughout the whole Midwest and I said, “Hang on, I'm not funded yet fully for the whole Midwest, but I like the way you think.” So, we are continuing to work with Spartan Nash on that.

The way that it's worked for the clients is extremely helpful. I gave the blueberry example. If a blueberry family comes and they're picking, they have about 90 days to earn the bulk of their money in blueberries. So, they really don't want to have to go to a deposition, or go to an attorney's office, or come back once they’re in Texas or Florida because we have to appear for trial. So, they would rather have the opportunity to have the problem solved right away.

What if it is just the crew leader, for example, that was paying the folks with poker chips, and then on Saturday the cash van would come out and exchange the chips for cash, which could change in value from day to day depending on the whim of the crew leader. What if that type of systemic problem for hundreds of people working on that particular farm could be eliminated with a couple phone calls?

I find that’s very helpful as well for the growers. A lot of times there’s an intermediary who has to translate what's happening. Sometimes, the intermediary might be on the take, or might be abusive, or might not care or have deliberate indifference towards what the law is. This gives the grower an opportunity as well if they are part of the Fair Food Program to get my courtesy alert, and then they can investigate it. So, the fact that it's voluntary has made it very popular and it allows companies who have a corporate social responsibility passion to be able to participate in a positive way towards this elimination of exploitation.

So that program is still very young because my main funding is still for the old fashioned “Let's run to court and litigate,” but as we get more members to the Fair Food Program, we will be able to sustain that outreach work and be able to continue to offer the real time monitoring of conditions. 

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