Lourdes Cortes has worked in agriculture most of her life, save a two-year stint cleaning houses. The 42-year-old thought 10-12 hour days and safety risks were par for the course in agricultural work.
Then she met Zach Ramirez.
Ramirez owns Willamette Farm Labor Contracting. In the larger contracting landscape, he is considered one of the good guys. Which is to say, he takes care of his employees, he says.
"I would never work for another contractor," she said. "I see how they treat their employees."
Farm labor contractors are third-party companies or individuals who solicit and recruit employees on behalf of farms. Contractors must have a license from the Bureau of Labor and Industries (BOLI) and the Department of Labor to operate.
Oregon’s farm labor contract system is decades old; laws governing it predate federal regulation.
But people on all sides say the system is flawed and fails to protect workers because regulations aren’t adequately enforced, penalties aren't strong enough, contractors aren’t given enough education once they’re licensed and there isn't an easy way to keep track of elusive players.
And then there are unlicensed contractors who “fly by night” and have no incentive to follow rules, draining resources and muddying the whole system.
A Statesman Journal investigation into discipline against farm labor contractors found few complaints and inconsistent enforcement of state and federal regulations.
Getting a license is easy, but just the start
There are more than 1,100 licensed farm labor contractors in Oregon.
Anyone who provides at least one employee to a farm and is not directly connected to that farm is considered a contractor. Many contractors start out as farmworkers themselves and move up in the ranks to become crew leads and supervisors. Once licensed, they can bring old crews to new jobs or recruit new ones, either through word of mouth or help wanted ads.
Some contract workers bounce between contractors depending on the job, the pay, and the season. Contractors are required to maintain and submit payroll reports. They are, in essence, 'HR for farmers,' " Ramirez said.
Contractors also must provide safety trainings and disclosures of rights at every new worksite and with every new crew.
But the licensing process is, to some, too easy.
Applicants must prove tax compliance, register as a corporation or a limited liability corporation, and provide proof of worker’s compensation and a bond. If they provide transportation, they need to provide worker’s compensation and proof of vehicle insurance.
Finally, applicants pay BOLI a fee — $150 for farm only, $350 for farm and forestry – and sit for an exam.
The exam covers basic contractor responsibilities and definitions. It includes some questions about state requirements regarding rest breaks, sick time and harassment.
Getting a license is easy, Ramirez said. The hard part is knowing how to run a successful business with that license.
“People take the test, get licensed, and think that’s it,” he said. “You end up running into people who don’t know how to do payroll, or taxes or how insurance works. There’s no additional education.”
Education vs. enforcement?
Contractors can work with farms to provide safety trainings. Farmers also can provide training.
But ultimately, the contractor is the legal employer, so they are legally responsible for their workers' safety.
In her early days with Willamette Farm Labor, Ramirez taught Cortes basic safety protocol. He have provide her all the equipment she needed. He didn’t send her to jobs she didn’t want — a general policy of his, he said.
So, instead of going from job to job as some workers do, Cortes settled down with Willamette Farm Labor Contracting. She's been there about six years.
Now, Cortes is the company's safety advisor. She goes to trainings and seminars to learn best practices, and brings her knowledge back to the field to make sure crews are staying safe. She splits her time between the field and an office.
It’s a title she wears proudly, even with crews that aren’t hers.
Once, Cortes said, she spotted workers spraying pesticides across the street from her worksite. They were wearing porous sneakers and no gloves.
She crossed the street and told them they were putting themselves at risk for pesticide exposure and they should be wearing different shoes. She taught them how they could protect themselves from the elements.
With her own crews, she's more strict. Show up to spray pesticides without safety glasses? You don't work that day.
Willamette Farm Labor provides the safety equipment and training. No excuses, Cortes said.
While all employers are legally obligated to follow certain safety protocol, knowing that protocol isn’t a requirement of the contract license.
BOLI deals with issues of licensing, payroll, and certain kinds of misconduct like harassment. Oregon OSHA deals with health and safety.
Oregon OSHA will issue monetary penalties if it determines an employer has violated health or safety regulations based on the severity of the hazard. It also will "require employers to address the workplace hazards we identify," said OSHA spokesperson Aaron Corvin.
But it seldom, if ever, reports those penalties to BOLI. The two agencies rarely communicate, except in cases of egregious or contractors operating without a license, said Laura van Enckevort, the interim wage and hour division administrator for BOLI.
“OSHA will make referrals to BOLI after they have completed their investigation or if they discover an unlicensed farm labor contractor,” van Enckevort said in an email to the Statesman Journal. “If the referral is related to a licensed labor contractor, the investigation would be considered as part of the investigation into the farm labor contractor’s character, competence and reliability when issuing or renewing that license.”
Representatives of the two agencies told the Statesman Journal they are in the early stages of discussing improvement of communication, including sharing health and safety data on a regular basis.
The Statesman Journal obtained and analyzed data from BOLI on alleged contract labor violations since 2019. There have been 112 complaints or claims filed with the agency against licensed contractors during the last three years.
None resulted in a license suspension or revocation.
In lieu of suspension or revocation, van Enckevort said, BOLI tries to bring contractors into compliance in other ways: warnings, mandatory classes, agreements.
Penalties are not always enough to correct bad behavior, Ramirez said.
"Fines don't work."
Roughly a quarter of cases since2019 ended with a "collection," meaning BOLI collected unpaid wages owed to an employee and closed the case. Fifteen employers were issued warning letters or compliance agreements.
In BOLI complaint files against labor contractors provided to the Statesman Journal, investigations follow a similar pattern: either a workplace is inspected, or a complaint is made by an employee.
BOLI then sends a letter to the contractor. An investigation is opened, and the contractor has the opportunity to respond.
First-time offenders often will receive a compliance agreement, van Enckevort said, which is a written promise to comply with the violated rule moving forward.
If the complaint is related to wages, BOLI collects the amount the agency determines is owed and closes the case.
When BOLI is unable to collect money owed, it will sometimes refer the case to the Department of Revenue.
Sometimes, BOLI closes a case without collecting or fining the contractor due to insufficient information.
Some cases related to misconduct are referred to the Department of Labor. The federal agency has the power to file an injunction against an employer if the allegations are particularly egregious, western region deputy administrator Richard Longo said.
Of the 112 claims and complaints since 2019, two were referred to the Department of Labor.
When asked if she thought the complaints reported gave an accurate reflection of the number of violations actually committed, van Enckevort said she did not, but she “didn’t have anything to support that position.”
But she said she knows, anecdotally, that "there is a lot that goes unreported."
BOLI can only investigate formal claims and complaints. And there are "a lot of reasons" employees don't report, van Enckevort said.
"The fear of retaliation can be really significant," she said.
Even though retaliation is illegal, fear of it "could influence someone to not report."
Ghost licenses and elusive contractors
A question on the licensing exam asks if it is legal for a friend or family member to apply for a license on your behalf if your license is revoked. The answer: no.
The question exists, van Eckenvort said, because it’s something BOLI has seen before: ghost licenses popping up under different names, but still run by someone whose license was revoked. A "silent partner."
This is one of the biggest challenges to accountability: in the contract labor system, the players can be elusive.
Jorge Vasquez operated a contract labor business under his name: Velasquez Farm Labor.
In two years, he developed a nearly mythical reputation: Farmworkers know him as El Diablo, the devil. He wears the name with pride on Facebook. In El Diablo mythology, he shows up at work sites wearing all black and a big cowboy hat.
Vasquez was a licensed labor contractor from 2007-2009. He did not renew after two years, according to records from the Oregon Secretary of State.
His daughter, Celfida, got her own license in 2012 under the name “Vasquez Family Labor Services.”
Farmworkers say Vasquez continues to be involved in the business. On Facebook, he posts photos and videos from worksites with captions, in Spanish, like "here with Vasquez for the harvest, 70 cents per pound."
His family has been repeatedly penalized, according to state records.
In 2015, Oregon OSHA fined the family business $140 for not posting field sanitation posters.
In 2017, the company was fined $5,000 for housing migrant workers on company property without registering the buildings.
In 2019, Vasquez Family Contract Services was fined $35,000 in civil penalties for housing workers in “squalid living conditions” despite not having a license to house employees. At the time, the family said in a statement that the workers were not theirs, but they settled anyway.
"That's a good example of, someone may be licensed for a year or two and aren't able to renew so they have someone else step in," van Enckevort said.
Vasquez and his daughter did not respond to requests to talk with the Statesman Journal.
BOLI has not successfully proven any cases of "ghost licensing" in her time there; but the agency hears about it enough to know it's a problem.
van Enckevort acknowledges it’s a bit of a game of whack-a-mole. Still, she said, state agencies have some power over licensed contractors. There are rules and processes for accountability, and even if they don’t always work, they help keep contractors compliant and workers safe.
'Fly-by-night' contractors add danger
There also are contractors who “fly by night:” solicit workers under-the-table, promise money, then disappear without a trace.
They are the hardest to hold accountable, van Enckevort said, because they are unlicensed.
Unlicensed contractors don’t know the rules or don't follow them. They have been known to under-bid licensed contractors, offer farmers the lowest price and pay their workers the lowest wages.
According to the U.S. Bureau of Labor Statistics, Oregon farmworkers who work with crops or in nurseries made an average of $14.84 an hour in 2021.
But unlicensed contractors pay in cash or with “personal checks.” Without a license, they don’t submit payroll to any state agency so there is no public documentation of their wages.
"It's a disadvantage for people who follow the laws and have to bid at a higher rate," van Enckevort said.
It also leaves even less room for accountability.
"They will promise all this money, then something will happen and workers end up stranded without pay. It's nearly impossible to locate those employers [without a license]."
Absent BOLI enforcement, the other avenue for accountability is civil litigation.
Employees have private right of action — meaning they can sue — for more money than most other industries. Civil penalties in farm labor contracting can be up to $2,000 per violation, van Enckevort said. In most other sectors, penalties are capped at $1,000.
Mayra Ledesma, an attorney for the Northwest Workers Justice Project, said she has a heavy caseload of farmworkers pursuing lost wages or alleging mistreatment.
The question, Ledesma said, is who to sue.
The federal Agricultural Workers Protection Act (AWPA) includes a stipulation of “joint employment,” which puts equal responsibility on growers and contractors for worker safety, working conditions, pay, etc.
Oregon laws provide no such stipulation. The Oregon Contractor Registration Act requires contractors to be licensed with the state and puts sole responsibility on them as the employer.
“Our statute has that huge gap,” Ledesma said.
Growers have used this argument before. After 38-year-old Sebastian Francisco Lopez died last year after collapsing at work on a 104-degree day, the nursery appealed its citation from Oregon OSHA and argued they were not responsible for his safety because he was employed by a labor contractor.
Oregon OSHA determined the nursery had maintained management of Lopez’s crew for the duration of their employment. The nursery paid the fine but could recoup funds depending on the outcome of the appeal.
Joint responsibility might encourage better compliance with safety regulations and labor laws, Ledesma said. It would make it easier for her clients in court, too. Contractors don't often have many assets, she said, and suing them is hard.
"(Contractors) tend to be other individuals who might have themselves been farmworkers; they don't always know the laws," Ledesma said. "They don't always manage their business in a way that allows them to have liquidity."
van Enckevort said BOLI pursues action against whichever party, or parties, most benefit the worker, so they will go after farmers if and when applicable. BOLI most commonly investigates growers who use unlicensed contractors, but the law also allows a grower to pay owed wages directly to workers and deduct the amount from whatever is due to the contractor.
There is a loophole that allows lawyers like Ledesma to involve the farm in litigation. Farmers who hire contract labor are supposed to check the contractor's license. If they don't, and Ledesma can prove they didn't, they become liable for any wages not paid to the worker.
But Ledesma said she wishes there was more liability for any party using a labor contractor, regardless of whether the contractor is licensed. That might encourage better compliance from all parties, she said.
When she does sue labor contractors, it's almost always for the same thing: disclosure statements.
Contractors are required to provide disclosures — written statements that outline worksite details, length of employment, and workers' rights — to workers for every job.
BOLI does not check every worksite for statements, van Enckevort said. It does not have the capacity. But contractors are required to provide sample disclosure statements in order to renew their license.
Ledesma says it's not enough.
In nearly every case she takes against contractors, Ledesma said, a disclosure was not provided.
"At the end of the day, workers get shafted because they don't receive information about where they're going," Ledesma said.
Ledesma has a stack of cases against labor contractors from clients who felt they had no other option but to sue.
In one, workers allege they worked in 90-degree heat at a hazelnut farm near Salem without water.
One worker began to feel lightheaded and showed symptoms of severe dehydration. When she complained and asked for water, she and her crew were told there was no more work for them and sent home, according to an active lawsuit filed against the farm lead and two contractors.
In another, a worker claimed she was harassed and discriminated against for her gender and perceived sexual orientation. She sued for harassment and for failing to provide written writes or disclosures. The case still moving through the courts.
Another worker claimed a contractor failed to pay her for a day's work. Because she had not been given a written disclosure, she didn't know the name of the farm or the contractor.
Ledesma had to use cell phone data to determine where the woman had worked that day. The nursery then voluntarily disclosed the name of the contractor it had hired. The case was dismissed in June.
'We couldn't do all of this on our own'
For contractors like Ramirez, more regulation isn't the answer, he said. There are enough rules.
But he agrees with Ledesma that more equal responsibility between farmers and contractors would encourage more compliance.
"We are their HR," Ramirez said. "But as soon as something goes wrong, farmers say 'It's not my issue.'"
Ramirez said he works for farms that share his commitment to safety and who are willing to give his workers the work they want.
And his clients are grateful. Ramirez can follow the seasons and guarantee year-round work for his employees. Farms can use his labor when they need it
And growers get critical work done without having to pay for staff year-round.
"We couldn't do all of this on our own," Jason Tosch, VP of vineyard operations for Stoller Family Estate Vineyard, said.
Stoller's labor is half its own, half contracted. Its own team is not big enough to do everything that needs to be done during the peak summer and fall season. Ramirez's team at Willamette Farm Labor Contract helps fill the gap.
"These fields get 29 passes per year," Tosch said. "They don't grow without people. We've got to take good care of them."
As a new state law requiring farmworkers be paid overtime goes into effect in January, BOLI might be better equipped to enforce license requirements.
Overtime rules are another thing contractors will have to learn to comply with; there will be a question about it on the licensing exam, van Enckevort said.
It also will bolster BOLI's enforcement capacity. The agency is poised to add staff to help enforce the rule, van Enckevort said.
The new staff will also have the authority to enforce and report other licensing violations. Compliance specialists will not need an official claim or complaint to investigate employers, van Enckevort said. Just a tip or referral will suffice on overtime complaints.
"Overtime will create extra resources," van Enckevort said.
Shannon Sollitt covers agricultural workers through Report for America, a program that aims to support local journalism and democracy by reporting on under-covered issues and communities. Send tips, questions and comments to firstname.lastname@example.org
This article originally appeared on Salem Statesman Journal: Oregon's contract labor system leaves farmworkers vulnerable