Axios: “The bottom line: Food retailers, which could require their suppliers to join programs like the Fair Food Program or Milk with Dignity, are key to ending widespread forced labor.”
Jon Esformes, CEO of Sunripe Certified Brands and first grower to join the Fair Food Program: “If all retailers joined the Fair Food Program the most egregious criminal behavior would end, and lesser crimes would be quickly uncovered.”
A stunning report in Axios paints a damning picture of widespread farm labor abuse in the US agricultural industry outside the protections of the Fair Food Program.
Yet while federal prosecutions of forced labor operations grow more common in agriculture, many massive food corporations like the grocery giant Kroger continue to turn a blind eye to the extreme abuses of some of the most vulnerable workers at the bottom of their opaque supply chains, according to a shocking report, months in the making, by Richard Collings of Axios. Meanwhile, according to the report, the lack of adequate resources for state and federal authorities to protect farmworkers is only making matters worse, and is likely allowing even more widespread exploitation of the agricultural workers who put food on our tables to go undetected.
Against this backdrop of pervasive abuse, Worker-driven Social Responsibility programs like the Fair Food Program and Milk with Dignity are singled out by Axios as “key to ending widespread forced labor.”
The bullet-pointed report is a must-read. We have included it here below in full to best share its urgent message: Forced labor is an appalling reality in US agriculture today, but there is a proven solution — the unique monitoring and enforcement mechanisms of the Fair Food Program, driven by workers as the frontline monitor of their own rights and backed by the purchasing power of the program’s participating buyers.
While the FFP rapidly expands across the US thanks in part to support from the US Department of Agriculture, its reach must continue to spread even further in order to turn the tide against forced labor. Key to its expansion are the CIW’s legally-binding agreements with participating buyers, who commit to preferentially source from farms that comply with the FFP’s Code of Conduct, and to suspend purchases from farms that are suspended from the program for significant code violations. Those market incentives drive compliance on participating farms and were the force behind the transformation of the Florida tomato industry from “ground zero for modern-day slavery,” in the words of federal prosecutors before the launch of the program in 2010, to what was called the “best workplace environment in US agriculture” by one human rights expert on the front page of the New York Times just three years later.
Kroger, which for years has refused to join the Fair Food Program, has been linked to multiple modern slavery rings in recent years, including perhaps the largest in US history in Operation Blooming Onion. Despite this deplorable track record, Kroger declined to comment when asked by Axios for its response to its reporting. This unconscionable silence puts Kroger squarely on the wrong side of history, and if history has taught us anything, it is this: The only thing necessary for the triumph of evil is for good people to do nothing.
Below is Axios’ report in full:
Forced labor persists in the U.S. food supply chain
Forced labor, often tied to the H-2A agricultural guest worker visa program, pervades the U.S. grocery food chain, according to the Department of Labor and recent studies.
Why it matters: Retail has faced a reckoning around forced labor this year. Shein this week hired an ex-EU official to help it overcome potential regulatory scrutiny for its planned London IPO. And in the food industry, forced labor concerns have factored into reviews of Kroger’s acquisition of Albertsons.
The big picture: Food supply chains are incredibly complex, with multiple actors involved, making it easier for violations to go unchecked.
Driving the news: The Labor Department in an enforcement action against a farm labor contractor noted that Kroger — one of the largest U.S. food retailers — was one retailer that bought its produce.
Kroger also had a partnership with a blueberry grower that allegedly hired a labor contractor accused of human trafficking, according to the investigative news site The Lever.
Kroger also bought poultry, via a subsidiary, from a supplier that illegally endangered children, per the department.
Critics have questioned whether the grocer, which is looking to acquire Albertsons for $25 billion, should be allowed to grow via M&A because of these supply chain concerns.
Kroger declined to comment. The company’s corporate social responsibility policy notes it uses auditors to confirm that vendors comply with a code of conduct, which prohibits forced labor.
Context: “Forced labor is indeed involuntary — initial consent to a job doesn’t mean it’s a legal defense if workers are then subjected to forced labor or any other labor trafficking offense,” says Laura Germino, co-founder of CIW (Coalition of Immokalee Workers) a worker-based human rights group.
Zoom in: The definition of forced labor is broad and can include both wage and non-wage H2-A violations.
Along with underpaying and not reimbursing expenses, violations include jeopardizing housing, transportation, safety, and health.
Discrimination and intimidation can also lead to forced labor or labor trafficking criminal cases, says Mike Rios, the executive director of the Fair Food Standards Council.
The largest criminal case in the U.S. arose from Operation Blooming Onion in Georgia, which “allegedly defrauded the government of over 70,000 H-2A visas,” with eight of 24 defendants pleading guilty earlier this year.
What they’re saying: In the Southeast, in particular, migrant workers are often tied to a single employer (usually a farm labor contractor) on whom they have to rely for nearly everything, from housing and transportation to health care, Rios says.
This setup allows forced labor to take root and thrive, he adds.
By the numbers: Labor’s Wage and Hour Division (WHD) conducted 34,000 investigations between 2000 and 2022, an average of nearly 1,500 per year.
Last year, investigators with the division’s Southeast Region identified violations in 90% of the 240 WHD-led investigations — up from 85% of nearly 220 investigations the year prior.
Stunning stat: Fewer than 1% of agricultural employers are investigated annually, but WHD finds wage and hour violations in 70% of its investigations, according to the Economic Policy Institute.
“Among the 70% of investigations that detected violations between 2005 and 2019, almost 40% found one to four violations on the farm, and 31% found five or more,” it says.
WHD’s budget increased by only $5 million from $241 million in 2006 to $246 million in 2022, while the number of investigators at the division is near a historic low, the institute says, suggesting inadequate resources.
The bottom line: H-2A reform will be difficult to achieve in today’s divisive political climate, Rios says.
That leaves the solutions in the hands of consumers, retailers and farmers, via programs like the Fair Food Program that have an enforcement mechanism.
Every year hundreds of thousands of agriculture workers are recruited in foreign countries, navigating a bureaucratic process to gain employment via the H-2A visa program.
Why it matters: Immigrant laborers make up 73% of the U.S.’s agricultural workforce.
How it works: Labor’s Employment and Training Administration runs the H-2A program, reviews applications, and issues labor certifications.
The U.S. Citizenship and Immigration Services adjudicates, while the State Department issues visas.
Zoom in: Farms typically hire a licensed farm labor contractor, who is responsible for recruiting, transporting and managing (including housing and paying) farmworkers.
These contractors — who are required to pass a certification test and prove they haven’t committed a crime in the last five years — can either directly recruit from a foreign country or hire recruiters there.
Contractors or their recruiters then set up visa application appointments for prospective workers at the nearest U.S. consulate.
What they’re saying: Recruitment is a crucial piece of the worker experience and can be the start of a slip into forced labor, Rios says.
Farm labor contractors account for a quarter of all federal wage and hour violations.
By employing a farm labor contractor, a farm only needs to write a single check while placing an additional layer between it and the worker, gaining some plausible deniability, Jon Esformes, CEO of tomato grower Sunripe Certified Brands, tells Axios.
When possible violations arise, Labor’s Wage and Hour branch investigates — and cases with strong indicators of forced labor are handed to the Office of the Inspector General. The FBI may also get involved.
By the numbers: The number of H-2A workers rose to nearly 371,000 in fiscal 2022, from almost 225,000 in fiscal 2017, an increase of about 65% over five years.
Florida alone had nearly 51,000 H-2A workers in fiscal 2022.
The U.S. Consulate in Monterrey, Mexico, handled up to 2,000 applications per day as of 2020 and is now thought to handle between 2,000 and 3,000.
Food retailers and forced labor
Prosecutions of farm labor contractors reveal forced labor’s role in both harvesting and selling fresh produce.
Case in point: The owner of Florida-based Los Villatoros Harvesting, which harvested watermelons for Kroger and Walmart supplier Sun Fresh Farms, was sentenced to 118 months in prison in February 2023.
Los Villatoros’ owner and state labor contractor, Bladimir Moreno, was ordered to pay $175,000 in restitution to victims, assessed penalties of $203,350 tied to forced labor, and barred from participating in the H-2A visa program.
Los Villatoros Harvesting also “provided crews for Cardinal Farms in Oaktown and Wonning Melons in Vincennes to pack melons for sale through a distributor to chains including Kroger, Schnucks and Sam’s Clubs,” per the Labor Department.
Plus, IGA, Ingles and Amazon-owned Whole Foods bought produce harvested by Balcazar Nature Harvesting, a South Carolina farm labor contractor whose owner, Enrique Balcazar, was sentenced to 40 months in federal prison last year.
Balcazar pleaded guilty to labor trafficking and passport confiscation.
What they’re saying: Schnucks tells Axios that it “contractually requires all our suppliers to operate in accord with applicable federal and state labor laws,” but declined to comment further.
“WFM requires suppliers to adhere to a strict code of conduct and works with the Coalition of Immokalee Workers’ Fair Food and other third-party certifiers to support better working conditions in the food supply chain,” says a Whole Foods spokesperson.
Walmart, the parent of Sam’s Clubs, declined to comment due to being in a quiet period but pointed Axios to its guidelines and policies. Walmart’s guidelines read, “the use of any form of forced or trafficked labor anywhere in our own operations and supply chain is prohibited.” It is also a participating buyer in the Fair Food Program (more below) for tomatoes.
IGA and Ingles did not respond to a request for comment.
Flashback: Kroger faced an explicit call for transparency in 2022 when activist investor Domini Impact Investments attempted to compel the grocer to be open about efforts to reduce forced labor in its supply chain.
Domini wanted the grocery chain to include a proposal that would get the company to join the Fair Food Program included in its proxy materials.
In a letter to the SEC, Kroger’s lawyers pushed back, claiming the proposal would restrict its sourcing abilities and impose a premium on pricing
“The company expects all of its suppliers to maintain strong management systems to address labor concerns in their respective supply chains,” the lawyers wrote, adding that Kroger “regularly analyzes its suppliers and considers ways to mitigate risk.”
Kroger declined to comment to Axios.
The bottom line: Food retailers, which could require their suppliers to join programs like the Fair Food Program or Milk with Dignity, are key to ending widespread forced labor.
“If all retailers joined the Fair Food Program the most egregious criminal behavior would end, and lesser crimes would be quickly uncovered,” Esformes says.
Participants for specific products such as tomatoes, but not all fresh produce, include Ahold Delhaize, Burger King, Chipotle, Subway, Trader Joe’s, Yum Brands, Aramark and Sodexho, among others.
The Fair Food Program
The U.S. Departments of Labor and Agriculture are laying the groundwork to reduce forced labor through their support of initiatives like the Fair Food Program, says Sunripe’s Esformes.Why it matters: Such initiatives are vital as legislation proves elusive and resources to enforce existing laws are lacking.
Sunripe was the first major grower to join the Fair Food Program in 2010, Esformes says.
What we found: Axios visited a Newport, Tenn.-based Sunripe-operated farm in July. Facilities, services, and amenities include dormitory-like sleeping quarters and bathrooms that are air-conditioned, weekly visits from a local health provider, kitchen areas for storing and preparing food, and transportation, all provided by Sunripe.
A typical workweek is six days for an average of six hours per day, though that can be impacted by weather conditions. Workers can work up to around eight-hour days.
Heat stress protocols are included. As the temperature rises, mandatory breaks become more frequent. A heat index of 105 degrees means work completely stops.
How it works: When workers arrive, they are instructed on their rights, on how to report abuses, and given a hotline telephone number to contact in the event a violation occurs.
Workers are free to come and go as they please, but they are required to fulfill their contract obligations and to arrive to work on time.
The minimum wage in Tennessee is $15.40 per hour for migrant workers, though they can make up to $24 per hour.
Flashback: Created in 2010, the Fair Food Program came from the CIW, which was started in 1993 as workers became frustrated with abusive worker conditions, including beatings and rape, says Greg Asbed, a co-founder of the organization.
“The CIW has uncovered, investigated, referred to the Department of Justice and assisted in the prosecution of many multi-state, multi-worker violent forced labor operations since the 1990s onward to the present,” Germino notes.
The Fair Food Program was created to stop the abuses before they occur, Asbed and Monacello say.
Zoom in: If workers complained, it was more likely they would be fired than their boss receiving punishment, Asbed tells Axios.
Esformes notes that many of the workers come from areas in Mexico where it is considered unwise to complain, especially to law enforcement, so understanding that background and educating them on their rights is essential.
Legislation reforming the H-2A program
The problem of forced labor requires a policy-level solution, but existing proposed legislation is mired in Congress.
Catch up quick: The Farm Workforce Modernization Act was initially passed by the House of Representatives in 2021. Its co-sponsors and other members of Congress reintroduced it last year.
The latest: The House will only be in session three more weeks before the general election, leaving little time for any reform to make its way through Congress, bill co-sponsor Rep. Zoe Lofgren (D-Calif.) tells Axios.
How it works: The legislation primarily aims to provide a pathway for illegal immigrants working on farms to become legal workers,
It would also allow farming operations to employ H-2A workers year-round, and it would let smaller operations share workers and associated housing and transportation costs.
Between the lines: Co-sponsor Rep. Dan Newhouse (R-Wash.) says the issue presents a bipartisan opportunity to address both the border crisis and the need for a stronger farm workforce.
Yes, but: Anything conflated with the issue of immigration reform — even though the H-2A reform bill is attempting to address a farm labor shortage — will be difficult to pass currently, Newhouse adds.
The other side: The Food Chain Workers Alliance, a coalition of worker-based organizations, has criticized the legislation for “tying immigration status to immigration enforcement.”
What we’re watching: There is also legislation, which is similar to but not a companion of the House bill, that was reintroduced this year by Sen. Michael Bennet (D-Colo.) and several of his Democratic colleagues.
The bottom line: “If this bill became law, several million undocumented farm workers and their families would stop looking over their shoulders,” Lofgren says.
