Stealing Pennies from Chileros

Green chiles are a hot commodity, but the fields are overgrown with wage theft.

Joseph Sorrentino December 17, 2013

Susana Lopez picks chiles on a farm in Deming, N.M. Each bucket weighs 20lbs. (Joseph Sorrentino)

In the ear­ly morn­ing dark­ness, Susana Lopez, back­pack slung over her shoul­der, heads off to a stretch of dis­count stores on El Paso Street, one of the main gath­er­ing places for farm­work­ers in El Paso, Texas. Here she joins dozens of oth­er exhaust­ed labor­ers who woke up at 2 a.m. in the hope of being hired by a con­tratista, the con­trac­tors who pro­vide labor for the region’s farms. Some of the work­ers pick up a pas­try at the bak­ery half a block away; oth­ers grab a bur­ri­to from a side­walk stand. They take their break­fast and sit on a curb or lean against a wall of the Pay­less Shoe­Source and wait. It’s a life of uncer­tain­ty. You nev­er know if there’s gonna be work,” Isidro Man­cha, 63, who was born and raised in Albu­querque, tells me.“[You] work with dif­fer­ent con­tratis­tas almost every day.”

Sin Fronteras’ Marentes wants to start a movement for 'oppression-free' food, which would mean, in part, an increase in farmworker wages.

On this late Sep­tem­ber day, Lopez only has to wait a half an hour before get­ting picked to hop into a contratista’s van bound for a green chile field in Dem­ing, New Mex­i­co, 119 miles away. On oth­er days she has wait­ed as long as an hour and a half. Advo­cates and work­ers say con­tratis­tas choose peo­ple they know — those who work fast and, espe­cial­ly, those who don’t com­plain. Work­ers call the sys­tem, Tú sí, tú no.” You yes, you no.”

Some­times Lopez gets lucky and gets work in Las Cruces, an easy 45-minute dri­ve, but today the trip takes near­ly three hours each way. Once in Dem­ing, she and her com­pan­ions wait in the van or stand at the top of the chile rows, anx­ious to get start­ed. It will be anoth­er 30 min­utes before the con­tratista final­ly sig­nals that it is light enough to work. Then it is non­stop movement.

By the time Lopez gets back to El Paso that night, she’ll have spent 13 hours just to get paid $47 for six hours of work. And while it’s legal for the con­tratista not to pay her for those hours spent wait­ing on El Paso Street and trav­el­ing to and from the fields, I find that he may have bro­ken the law in sev­er­al oth­er ways to keep her day’s pay that small. For New Mexico’s chile pick­ers, I soon dis­cov­er, wage theft is as com­mon as sore backs.

Help keep this report­ing pos­si­ble by mak­ing a dona­tion today.

Lopez’s pay is too low to afford an apart­ment, so she stays at a shel­ter in El Paso run by a farm­work­er advo­ca­cy group, the Sin Fron­teras Orga­niz­ing Project. It hous­es up to 125 labor­ers, many of whom have some type of legal sta­tus. All of those I spoke with were legal per­ma­nent res­i­dents, and sev­er­al were U.S. cit­i­zens. To call the shel­ter bare bones would be gen­er­ous. Lopez and sev­er­al oth­er women share a tiny room next to the recep­tion area that also hous­es a water foun­tain; the men sleep near­by in the large main room. There are no beds or cots; every­one sleeps on blan­kets or thin mat­tress­es placed right on the linoleum floor. The shel­ter is crowd­ed, often noisy, and there’s no pri­va­cy. With only a few small win­dows, the air quick­ly gets stale. But it’s free. I live here out of neces­si­ty,” says Lopez. If I had an apart­ment, I couldn’t send mon­ey to my fam­i­ly” — a 6‑year-old daugh­ter and two ail­ing par­ents right across the bor­der in Ciu­dad Juárez.

When I arrive at the chile field with Lopez at dawn on a late Sep­tem­ber day, the air is sur­pris­ing­ly cool, although south­ern New Mex­i­co is still see­ing highs in the upper 80s. A faint smell of chiles hangs in the air. In the dark, I can bare­ly make out the neat green rows that stretch out for acres. Green chiles grow low to the ground, so Lopez and the oth­er work­ers kneel to har­vest them, push­ing buck­ets ahead of them as they scoot for­ward on their knees. The plants are wet with ear­ly-morn­ing dew, and work­ers’ cloth­ing quick­ly becomes cov­ered in mud.

You get all dirty,” says Eduar­do Mar­tinez, 46, who picks chiles to sup­port a wife and two chil­dren back in Ciu­dad Juárez.“You’re like a pig.”

Each time Lopez fills a buck­et, which holds about 20 pounds, she hoists it onto a shoul­der and hur­ries to the large crates where she’ll deposit her chiles. Work­ers are paid piece rate, and most New Mex­i­co farm­ers were pay­ing 85¢ a buck­et for green chiles this year. (“You wan­na make mon­ey, you got­ta move your fin­gers quick,” says José Valentes, a slight man of 65 who’s been work­ing the fields for almost 50 years.) Every time Lopez dumps her buck­et, a small plas­tic token, a ficha, is tossed in; she tucks it in a front pock­et and hur­ries back to her row to con­tin­ue picking.

In the cool of the ear­ly morn­ing, the crew of about 60 work­ers moves quick­ly down the rows, rush­ing back and forth to the crates. Lopez, a big woman, is soon breath­ing heav­i­ly. As the day pro­gress­es, the tem­per­a­ture ris­es, hit­ting 88 degrees. Exhaus­tion kicks in, and every­one slows down.

Lopez was told that the crew would work until noon that day. Then 12:30. Final­ly, at 1 p.m., she calls it quits. I work until my body says, Stop,’ ” she says. Her legs hurt, her arms hurt; she is spent. She holds out her right hand. It is shaking.

Soon, more work­ers leave the field. But the trac­tors keep com­ing, bring­ing more emp­ty crates wait­ing to be filled. No one gets paid until the day’s quo­ta is met, so Lopez waits. At around 2 p.m., there’s a long pause between trac­tors and she’s con­vinced she’ll final­ly get paid. Then anoth­er one pulls up. She shakes her head and mut­ters pen­de­jo,” a pro­fane word for idiot. By the time she’s paid, she’s lost yet anoth­er hour. For fill­ing 55 buck­ets, she’s paid $46.75. She worked 6.25 hours and wait­ed anoth­er two.

She should have earned much more. With rare excep­tions for very small farms, state law man­dates that when work­ers are paid hourly — for exam­ple, when weed­ing a field or pick­ing chiles — they must receive the New Mex­i­co min­i­mum wage of $7.50 an hour. If Lopez’s wait time is fac­tored in, her hourly pay falls far below $7.50. That means that, in effect, her wages were stolen.

Accord­ing to the U.S. Depart­ment of Agri­cul­ture, New Mex­i­co ranked first in the nation in acreage in 2012, with near­ly 10,000 acres plant­ed and 78,000 tons of chiles har­vest­ed. That crop was val­ued at $65 mil­lion, but the true mar­ket val­ue of those New Mex­i­can chiles — when they are used in restau­rants, sold in stores or made into sal­sas — was esti­mat­ed at $400 mil­lion in 2012 by the New Mex­i­co Chile Asso­ci­a­tion (NMCA), a group com­prised of farm­ers and processors.

But the crop’s val­ue goes beyond dol­lars and cents. Car­los Mar­entes, direc­tor of Sin Fron­teras, calls the green chile New Mexico’s sacred cow.” That’s no exag­ger­a­tion. Some New Mex­i­cans have a sep­a­rate freez­er just for their chiles, and chile fes­ti­vals abound across the state. But the pop­u­lar­i­ty of green chiles has spread beyond New Mexico’s bor­ders. A sur­vey released in July by USA Today named green chile sauce America’s best icon­ic food. Accord­ing to NMCA, green chiles from New Mex­i­co are now sold across the coun­try in super­mar­kets such as Albert­sons, Whole Foods, Kroger and Wal­mart. They are a much-tout­ed ingre­di­ent in sal­sas and sauces made by proces­sors such as Bueno Foods, San­ta Fe Olé́, Cer­vantes and Bor­der Products.

Lit­tle of these prof­its reach los chileros — the chile pick­ers — them­selves. Accord­ing to a May 2012 report from the Bureau of Labor Sta­tis­tics, farm­work­ers nation­al­ly earned an aver­age of $17,000 to $26,000 a year. But a 2012 sur­vey by the New Mex­i­co Cen­ter for Law and Pover­ty (NMCLP) of 253 farm­work­ers — many of whom stay at Sin Fron­teras, and most of whom pick chiles — lists their aver­age house­hold incomes at less than $9,000, well below the fed­er­al pover­ty line.

Wage theft is a piece of that pic­ture. Two-thirds of the field work­ers sur­veyed by NMCLP report­ed some form of ille­gal under­pay­ment that year.

That theft is per­pe­trat­ed in sev­er­al ways. The most com­mon, accord­ing to María Martínez Sánchez, an attor­ney at NMCLP, is for the con­tratista or the farmer to fal­si­fy work­ers’ dai­ly wage receipts. State and fed­er­al labor laws man­date that work­ers must earn at least min­i­mum wage, even when being paid piece rate. But, Martínez Sánchez explains, if a work­er doesn’t fill enough buck­ets to earn min­i­mum wage, the con­tratista or the farmer will doc­tor the hours so it looks as if a work­er did — a prac­tice called short­ing hours.”

The work­ers I spoke with inter­act­ed exclu­sive­ly with con­tratis­tas, and it is unclear to what extent farm­ers were involved in pay deci­sions. None of the half-dozen con­tratis­tas and farm­ers I reached out to were will­ing to share details. But Jim Knoepp, deputy legal direc­tor of the South­ern Pover­ty Law Cen­ter, explains that farm­ers are con­sid­ered joint employ­ers and so should be held account­able for infrac­tions by the contratista.

For sev­er­al days, I tracked the wages of 16 work­ers liv­ing at the Sin Fron­teras shel­ter. When they had receipts— hand­writ­ten on forms issued by the con­tratista — the receipts almost always showed an hourly rate that exceed­ed both fed­er­al and state min­i­mum wages. On paper, wages ranged as high as $14.72 an hour. How­ev­er, when I did the math using the actu­al num­ber of hours the work­ers report­ed, their true hourly rates ranged from $3.97 to $12.92. Two-thirds of the time, they didn’t earn the state min­i­mum wage of $7.50.

Take César Rivera (not his real name), a slight man of 72 from Coahuila, Mex­i­co, who walks with the stoop of some­one who has worked the fields most of his life. On Sep­tem­ber 30, Rivera told me he’d worked for sev­en hours, yet his receipt for the day said he’d worked four. That was the dif­fer­ence between a sup­posed wage of $8.50 an hour and a real hourly wage of $4.86 an hour. Dur­ing five sep­a­rate trips to the fields, I con­firmed first­hand that work­ers like Rivera often worked more hours than were record­ed on their receipts.

Even when hours aren’t short­ed, work­ers are rarely paid for the entire work­day. As was the case with Lopez, work­ers are rou­tine­ly forced to wait in the fields, off the clock. And that’s ille­gal, says Sarah Rich, an attor­ney at Texas Rio Grande Legal Aid. There’s a [fed­er­al] law called the Por­tal-to-Por­tal Act,’ ” Rich explains. Once they get to the farm and they’re being told to wait, then they’re basi­cal­ly there for the employer’s ben­e­fit,” and the law says they should get paid for that time. Yet the NMCLP sur­vey found that 95 per­cent of work­ers had nev­er been paid for the time they spent wait­ing for work to begin. And, accord­ing to Martínez Sánchez, the NMCLP attor­ney, the Por­tal-to-Por­tal Act also enti­tles work­ers to com­pen­sa­tion for time spent wait­ing to be paid. When I took into account wait times in the field, the work­ers I tracked received less than min­i­mum wage three-quar­ters of the time, and hourly rates dropped as low as $3.78.

Wage theft also takes place through the rou­tine vio­la­tion of the New Mexico’s min­i­mum wage law of $7.50 an hour. Farm­ers and con­tratis­tas alike that I spoke with seemed to believe, erro­neous­ly, that they were exempt from pay­ing the state’s high­er hourly rate, and had to pay only the low­er fed­er­al rate of $7.25. Even Con­nie Ley­va, bureau chief of the Depart­ment of Work­force Solu­tions (DWS) in Albu­querque, the office that enforces New Mexico’s wage and hour laws, got it wrong. When asked about the min­i­mum wage for farm­work­ers, she replied, As far as we’re con­cerned, it’s $7.25 an hour.”

These stolen wages may only mean pen­nies and dol­lars a day, but they soon add up. While it varies great­ly, a typ­i­cal chilero might work sev­en hours a day, five days a week, for 12 weeks dur­ing the harvest.That’s $105 stolen persea­son for each work­er who’s paid $7.25 an hour instead of $7.50. Fac­tor in a half hour of unpaid wait­ing time before and after each shift, a con­ser­v­a­tive esti­mate, and that’s anoth­er $450 stolen per work­er each sea­son. A slow­er pick­er whose con­tratista alters his receipts — by cut­ting as many as 3.5 work­ing hours a day to make it appear he’s earn­ing min­i­mum wage — could be short­ed by as much as $1,580 in a sea­son. And in New Mex­i­co, wage under­pay­ment is con­sid­ered a crim­i­nal mis­de­meanor, and could mean jail time for the employer.

So do the proces­sors and sal­sa man­u­fac­tur­ers who brag about using New Mex­i­co chiles know about the preva­lence of wage theft in the fields? Bueno Foods failed to return three phone calls from In These Times, and Bor­der Prod­ucts was unable to com­ment before the dead­line. But Jim Wrench, own­er of San­ta Fe Olé́, a small­er sal­sa-mak­er that uses only New Mex­i­co chiles, said that he doesn’t check that his sup­pli­ers pay the pick­ers prop­er­ly. It’s their busi­ness,” he says.“I don’t see how it’s my role.”

How­ev­er, Ari­an Gon­za­les, pres­i­dent of Cer­vantes Food Prod­ucts in Albu­querque, which mar­kets a line of sal­sas that use only New Mex­i­can green and red chiles, says, To us, it’s very impor­tant to make sure employ­ees are paid prop­er­ly. … Our sup­pli­ers go through a very strin­gent approval process. There are a num­ber of sys­tems in place to insure that farm­work­ers are get­ting what they’re due.” She says she’s made arrange­ments to vis­it her grow­ers’ fields in order to both visu­al­ly inspect the ingre­di­ents and talk to the workers.

Recent­ly, after pres­sure from NMCLP attor­ney Martínez Sánchez, DWS sent an email to its employ­ees clar­i­fy­ing that farm­work­ers, with few excep­tions, should be paid a min­i­mum wage of $7.50 an hour. I asked Lopez what anoth­er $7 or $8 a week would mean to her. I could buy some food for myself,” she told me. Or those soups that are 10 for a dol­lar — I could buy them and send them to my daugh­ter in Juarez.” Even more sig­nif­i­cant­ly, the DWS memo stip­u­lat­ed that work­ers are to be paid for their wait time. That alone could increase a field worker’s pay by as much as $15 a day. Yet it’s not cer­tain that such direc­tives have reached con­tratis­tas in the fields. In response to queries, Joy Fore­hand, deputy cab­i­net sec­re­tary at DWS, wrote, We are work­ing on out­reach and com­mu­ni­ca­tion to go out to employ­ers, includ­ing grow­ers and labor contractors.”

Dino Cer­vantes, pres­i­dent of the chile grow­ers group, believes there’s a sim­ple solu­tion to wage dis­putes: Work­ers should talk to their boss­es. Prob­a­bly just a phone call will solve the prob­lem,” he said. This seems will­ful­ly naïve. “[Work­ers] are not will­ing to com­plain,” Rich says. Their lives are very ten­u­ous. They don’t want to cut off any access to work and they don’t want to be black­balled, so they just put up with things.” Sev­er­al chileros told me, If I com­plain, I won’t get hired again.”

Their fears are not unfounded.

Lopez told me about a day in mid-June when she and 17 oth­er work­ers were hired to weed a chile field in Dem­ing. They were told they’d work eight hours and would be paid $60. At noon, the con­tratista arrived in the field and, with­out any expla­na­tion, told all the work­ers from El Paso to leave. They gave us $25 or $30,” Lopez says, and that was it.

The work­ers took the mon­ey, but their anger mount­ed on the ride back to El Paso, and they told their sto­ry to Ali­cia Mar­entes, direc­tor of social ser­vices at Sin Fron­teras. She asked Lopez for a list of the affect­ed work­ers and called the New Mex­i­co Legal Aid office in Las Cruces to file a complaint.

After­ward, Lopez says, she and the oth­er pick­ers were black­list­ed from get­ting work with that con­tratista. When they asked the con­tratista why she wouldn’t hire them, she said, Because you tried to get me in trou­ble with Legal Aid,” Lopez reports.

Mean­while, Lopez grew frus­trat­ed by the lack of progress at Legal Aid. The frus­tra­tion appears to be on both sides. Legal Aid’s Nena Gutier­rez, who took the com­plaint, says she can­not com­ment on the sta­tus of spe­cif­ic cas­es except to say that all are tak­en very seri­ous­ly,” but notes that only 50 per­cent of her time is devot­ed to farm­work­er cas­es, and that while she attempts to con­tact all of her clients, there are acces­si­bil­i­ty issues we face due to our farmworker’s mobil­i­ty in and out of El Paso (and all around the state for that mat­ter).” Rich, from the Texas Rio Grande Legal Aid, agrees. Clients are very mobile … you may meet them once or twice,” she says. She adds that work­ers some­times come to com­plain with­out bring­ing hour logs or oth­er nec­es­sary infor­ma­tion, in which case, We can’t do anything.”

Work­ers also have the option of tak­ing com­plaints to the DOL or New Mexico’s DWS. But unfor­tu­nate­ly, DWS pol­i­cy may also be inhibit­ing work­ers from com­ing for­ward. Before the enforce­ment agency will accept a com­plaint, a work­er must demand pay­ment from her employ­er. Giv­en the fear of retal­i­a­tion, that rarely happens.

Both the fed­er­al Depart­ment of Labor and New Mexico’s DWS are ridicu­lous­ly under­staffed. The DOL has eight agents to cov­er wage theft claims in a mas­sive land area, includ­ing all of south­ern New Mex­i­co and west Texas coun­ties. DWS has eight agents in its wage-and-hour unit to inves­ti­gate com­plaints across the state. I would imag­ine that eight inves­ti­ga­tors in either office is insuf­fi­cient,” says Martínez Sánchez. But it comes down to fund­ing and what fed­er­al and state pri­or­i­ties are.”

Wage theft, of course, doesn’t only occur among chile work­ers. It’s been hap­pen­ing for decades in all kinds of farm work,” says Knoepp. It’s also preva­lent in oth­er low-wage jobs occu­pied by immi­grants. Accord­ing to a study by Somos Un Pueblo Unido, an advo­ca­cy orga­ni­za­tion in San­ta Fe, almost 25 per­cent of immi­grant work­ers in New Mex­i­co are sub­ject­ed to wage theft. That report like­wise found that work­ers were reluc­tant to com­plain because they feared retaliation.

Sin Fron­teras’ Mar­entes wants to start a move­ment for oppres­sion-free” food, which would mean, in part, an increase in farm­work­er wages. That would raise the cost of food — an increase that would almost cer­tain­ly be passed onto con­sumers. Mar­entes hasn’t done the math on how much oppres­sion-free chiles would cost, but a study by Philip Mar­tin, a labor econ­o­mist at the Uni­ver­si­ty of Cal­i­for­nia, Davis, is infor­ma­tive. Accord­ing to the USDA, U.S. farm­work­ers aver­age $10.19 an hour — sig­nif­i­cant­ly more than chileros are get­ting. Mar­tin found that pay­ing farm­work­ers $14.10 an hour would lift them above the fed­er­al pover­ty line. The result­ing increase in gro­cery costs for a typ­i­cal Amer­i­can house­hold? About $17 a year.

This arti­cle was report­ed in part­ner­ship with The Inves­tiga­tive Fund at The Nation Insti­tute, with sup­port from The Puf­fin Foundation.

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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