The Uphill Battle Against Wage Theft in New Mexico’s Chile Fields

Joseph Sorrentino

Despite orders from state officials, labor contractors are not racing to inform farmworkers of their rights or wages. (Joseph Sorrentino)

It has tak­en almost a year of emails, let­ters and pres­sure, but at least some of New Mex­i­co’s con­tratis­tas (farm labor con­trac­tors) are final­ly pay­ing farm­work­ers the min­i­mum wage they’re enti­tled to. Until this year, they’d been pay­ing the fed­er­al min­i­mum wage, which is low­er than the state’s. The dif­fer­ence is small, only about an extra $10 a week, but for work­ers who are among the low­est paid in the US, every cent is cru­cial. The dif­fer­ence for con­tratis­tas, how­ev­er, is enor­mous; even those with small crews have saved hun­dreds of dol­lars a week by under­pay­ing work­ers and many thou­sands since New Mex­i­co’s min­i­mum wage was increased on Jan­u­ary 12009.

In an Inves­tiga­tive Fund sto­ry for In These Times last year, I uncov­ered how wage theft was ram­pant in New Mex­i­co’s chile fields. One of the most com­mon ways that con­tratis­tas were steal­ing wages was by rou­tine­ly pay­ing work­ers the fed­er­al min­i­mum wage, which is $7.25 an hour — but they should have been pay­ing New Mex­i­co’s wage, which is 25 cents more. While there is an exemp­tion for small farms, the exemp­tion some­how became stan­dard prac­tice on vir­tu­al­ly all farms across the state.

Last year, María Martínez Sánchez, an Albu­querque attor­ney who has worked tire­less­ly for farm­work­er rights for years, informed New Mex­i­co’s Depart­ment of Work­force Solu­tions (DWS) about this dis­crep­an­cy. In response, Jason Dean, the Divi­sion Direc­tor of the Labor Rela­tions Divi­sion, sent an email to DWS employ­ees on Octo­ber 4. It has come to my atten­tion that our agency is not apply­ing the NM Min­i­mum Wage Act’ … cor­rect­ly as it relates to our Migrant Farm Work­ers,” he wrote. This com­mu­ni­ca­tion is intend­ed to cor­rect that error imme­di­ate­ly. … As an agency we should not uni­lat­er­al­ly be telling all farm work­ers they are only enti­tled to the fed­er­al min­i­mum wage. ” But even though Dean said he want­ed the error cor­rect­ed imme­di­ate­ly,” that did­n’t happen.

Dean fol­lowed-up his email with a let­ter to New Mex­i­co’s reg­is­tered con­tratis­tas in late Feb­ru­ary of this year inform­ing them that the major­i­ty of farm­work­er employ­ees … should be paid an aver­age of at least $7.50 an hour.” That did­n’t do much, either. In April I found that, except on one farm, work­ers were still get­ting paid $7.25 an hour, for hourly wage work like weeding. 

Dur­ing my inves­ti­ga­tion last year, I spoke briefly with Dino Cer­vantes, the pres­i­dent of the New Mex­i­co Chile Asso­ci­a­tion (NMCA, an indus­try group) and told him that work­ers weren’t being paid the cor­rect wage. If they’re get­ting paid $7.25 an hour, (con­tratis­tas) are assum­ing that’s right,” he said. They’re not try­ing to exploit work­ers. Prob­a­bly just a phone call will solve the problem.” 

Hard­ly. The email and let­ter from Dean proved inef­fec­tive, and it was only after a DWS inves­ti­ga­tion, in late June of this year, of a con­tratista who rou­tine­ly under­paid work­ers — an inves­ti­ga­tion insti­gat­ed by Tess Wilkes, anoth­er attor­ney who has worked dili­gent­ly for farm­work­er rights — that he, and oth­er con­tratis­tas, began pay­ing work­ers the legal min­i­mum wage. 

Most farm­work­ers appre­ci­ate the few extra dol­lars in their pock­ets. It’s a lit­tle more mon­ey for the fam­i­ly,” said Raúl Car­dona, a work­er from Zacate­cas. I can buy a lit­tle more food, tor­tillas, maybe some fruit for my chil­dren.” Gre­go­rio Car­reto, a 72-year-old work­er from Mex­i­co City, said he would buy some school sup­plies for his grandchildren.

Not all work­ers were hap­py with the increase, how­ev­er. You real­ly can’t do any­thing with it,” said Eddie (he only want­ed his first name used), a work­er from Ciu­dad Juarez. I can’t even buy gum for my kids. Bur­ri­tos are $1 and you eat six a day, plus sodas. What we need is a dol­lar more.”

It’s extreme­ly unlike­ly that work­ers will get that dol­lar more per hour. But it turns out, they’re actu­al­ly enti­tled to a lot more money.

Dur­ing har­vest sea­son, chileros (chile pick­ers) begin lin­ing the streets of El Paso as ear­ly as 1:00 a.m., hop­ing to be hired for the day. Some con­tratis­tas pro­vide bus­es or vans that take work­ers to the fields in New Mex­i­co, a two- or three-hour ride away. There they’ll wait an hour or more until it’s light enough to begin work. Accord­ing to fed­er­al law, work­ers should be paid from the moment they arrive in the fields — some­thing Dean even stat­ed in his email to DWS employ­ees and in the let­ter to con­tratis­tas.

I asked many work­ers about unpaid wait time, includ­ing 53-year-old Jorge Matien, who, like most farm­work­ers in El Paso, is orig­i­nal­ly from Ciu­dad Juarez. Some­times we get [to the fields] about 5 but we need to wait so we can see,” he said. So we wait one hour, a cou­ple hours.” And the pay? Noth­ing. We don’t get noth­ing until we start to work.” 

Last year, I asked Jaye Hawkins, the Direc­tor of the NMCA, why work­ers were tak­en to the fields so ear­ly if they could­n’t start pick­ing because it was dark. In an email, she wrote, Most­ly the work­ers want to take advan­tage of the cool times of the day … most of this is to accom­mo­date work­ers … [and it’s] cul­tur­al. Ear­ly morn­ings and [agri­cul­ture] kind of have always gone hand in hand. What good would it do for a [f]armer to want employ­ees to arrive before they are sched­uled or before [there is] har­vest equip­ment and super­vi­sion at the field?”

I’ve learned from my report­ing trips, though, that farm­ers do have har­vest equip­ment and super­vi­sion in the fields — but work­ers still can’t pick until it’s light enough to see.

Get­ting paid for that wait time would be huge for work­ers. Not only do they typ­i­cal­ly wait an hour or more in the morn­ing, they also wait again to be paid at the end of the day. That’s at least $15 a day or $90 a week more for hourly work­ers who typ­i­cal­ly gross between $300 and $360 a week. Joy Fore­hand, DWS’s deputy cab­i­net sec­re­tary, did­n’t respond to emailed ques­tions about whether the agency will enforce the law. She did note, how­ev­er, that DWS had final­ly fin­ished an Eng­lish ver­sion of the state min­i­mum wage poster, which lists that most work­ers are to be paid $7.50 an hour. Until recent­ly, the DWS web­site only had the fed­er­al poster, show­ing the low­er hourly wage. A Span­ish ver­sion, she said, is in the works. 

With so many con­tratis­tas in New Mex­i­co, there’s no guar­an­tee they’ll all pay the cor­rect wage, and it’s extreme­ly unlike­ly any are pay­ing for wait time. Get­ting con­tratis­tas to obey all of the wage laws will take enforce­ment by DWS, along with fines for non-com­pli­ance, vig­i­lance by advo­cates and, espe­cial­ly, demands from work­ers them­selves for their wages and rights.

Reprint­ed with per­mis­sion from The Inves­tiga­tive Fund.

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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