A Victory for New Mexico’s Chileros

Farmers must pay chile pickers 25 cents more per hour, state says.

Joseph Sorrentino

Chileros in New Mexico's famed green chile industry still frequently experience wage theft, despite the minimum-wage victory. (Joseph Sorrentino)

Chile pick­ers in New Mex­i­co who per­form work that is as pre­car­i­ous as it is exhaust­ing — and who are vic­tims of an epi­dem­ic of wage theft, as In These Times report­ed in Decem­ber — have won a ten­ta­tive vic­to­ry. For years, con­tratis­tas (labor con­trac­tors) and grow­ers in New Mex­i­co believed they were exempt from pay­ing farm­work­ers the state’s min­i­mum wage of $7.50 an hour. Instead, they rou­tine­ly paid the fed­er­al min­i­mum wage of $7.25 an hour. But after some prod­ding by advo­cates, New Mexico’s Depart­ment of Work­force Solu­tions (DWS) sent a let­ter this Feb­ru­ary to all the reg­is­tered con­tratis­tas and grow­ers in the state, inform­ing them that work­ers must be paid 25 cents more an hour. 

While the increase may be a modest one for workers, it’s far from insignificant for contratistas and growers. For a moderately-sized crew ... that $2 a day translates to $600 a week that the contratista were saving—or stealing, depending on one’s point of view.

Tess Wilkes, an attor­ney at the New Mex­i­co Cen­ter for Law and Pover­ty (NMCLP), noticed that most work­ers were being paid the low­er wage when she was a law stu­dent a few years ago. I first saw it on work­er paystubs,” she says. Last sum­mer, the issue real­ly hit home for her when she was in the fields and real­ized that even peo­ple who believed they were in com­pli­ance with the law weren’t pay­ing work­ers ade­quate­ly. It wasn’t just a bad receipt or a rare case,” she con­tin­ues. “[A con­tratista] brought us a poster to show us what he dis­played [for work­ers], and it was the fed­er­al min­i­mum wage of $7.25.” María Martínez Sánchez, anoth­er attor­ney at NMCLP, sent a let­ter to DWS inform­ing them that, accord­ing to her legal analy­sis, work­ers should be paid at least the state min­i­mum wage of $7.50 an hour. Their Gen­er­al Coun­cil agreed and Jason Dean, the Divi­sion Direc­tor of the Labor Rela­tions Divi­sion at DWS, sent out the let­ter. (In the course of report­ing on wage theft last year, In These Times reviewed many wage receipts, and every one of them list­ed $7.25 as the hourly wage. It was only this year, at one farm, that this reporter final­ly found an employ­er pay­ing $7.50 an hour). 

While there are exemp­tions in the New Mex­i­co Min­i­mum Wage Act for small farms that employ very few work­ers, some­how grow­ers and con­tratis­tas came to believe that the entire agri­cul­ture indus­try in New Mex­i­co was exempt from pay­ing the state’s min­i­mum wage. Although the increase means only a few dol­lars a week more for a work­er, it does have an impact. 

Farm­work­ers in this region tend to oper­ate on a very slim mar­gin,” says Sarah Rich, an attor­ney at the non­prof­it Texas Rio Grande Legal Aid in El Paso. They have very lit­tle room for error in their bud­get, so any extra mon­ey is helpful.” 

Anto­nio Zubia Hernán­dez, a 62-year-old farm­work­er with a Pan­cho Vil­la mous­tache, put it this way: A few more dol­lars a week means a lit­tle more food for one…It can mean enough food for one day.” For Anto­nio, that meant, Two bur­ri­tos for break­fast, two for lunch and two for dinner.”

While the increase may be a mod­est one for work­ers, it’s far from insignif­i­cant for con­tratis­tas and grow­ers. For a mod­er­ate­ly-sized crew — say 50 peo­ple, work­ing eight hours a day for six days a week — that $2 a day trans­lates to $600 a week that the con­tratista were sav­ing — or steal­ing, depend­ing on one’s point of view. 

The DWS let­ter also addressed anoth­er, per­haps more sig­nif­i­cant, way that farm­work­ers rou­tine­ly have their wages stolen.

Many farm­work­ers in south­ern New Mex­i­co live in El Paso, Texas. Dur­ing the summer’s chile har­vest, they’re typ­i­cal­ly on the streets of that city by 2 a.m., hop­ing to be hired by a con­tratista who will then dri­ve them to farms in New Mex­i­co. They’ll often arrive at the farms an hour or more before sun­rise; it’s too dark to pick chiles so they sit on the bus or in a van and wait. Although fed­er­al law states that they must be paid for the time they spend wait­ing, they vir­tu­al­ly nev­er are. “[The employ­er] has cho­sen to … get them to the field at 5 a.m. and then make them sit around until it’s light enough to work,” says Rich. That’s an employer’s choice and the employ­er can pay for that choice. These peo­ples’ time is not worthless.” 

The DWS let­ter states: Final­ly, employ­ers should be remind­ed that employ­ees who are trans­port­ed to the fields and then not allowed to begin work are enti­tled to be paid the state min­i­mum wage of $7.50/hour for the entire time they are present at the work site.”

In addi­tion to the wait time at the start of their day, work­ers must wait at the end of the day to be paid, a wait that often stretch­es to well over an hour. Assum­ing wait times are two hours a day, six days a week, they could poten­tial­ly earn an extra $90 a week in the fields. That’s a huge amount for work­ers rou­tine­ly gross­ing $58 a day. 

The grow­ing sea­son is just begin­ning in New Mex­i­co. There’s lit­tle work and few work­ers in the fields right now, so it’s unclear whether work­ers are being paid the high­er wage. The let­ter from Dean warned that DWS would be con­duct­ing ran­dom audits to deter­mine if employ­ers were being paid cor­rect­ly. Only time, and vig­i­lance, will tell. 

Joseph Sor­renti­no is a writer and pho­tog­ra­ph­er. He has been doc­u­ment­ing the lives of agri­cul­tur­al work­ers on both sides of the U.S./Mexico bor­der for 12 years.
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