Overcoming Intimidation and Harrassment of Migrant Farmworkers

November 2, 2009

Guest Author:  Molly Graver 1

Last year, only a few months after I began working at Farmworker Legal Services of New York (FLSNY), I received a fax scrawled with ethnic slurs and xenophobic remarks, interspersed with irrelevant provisions of immigration law and accusations that our office was harboring terrorist sympathizers, aiding and abetting them in evading authorities and violating the law.  What, I thought, have I gotten myself into? In fact, I was representing four farmworkers from Peru who had worked in Western New York as agricultural guest workers for Becker Farms.  Our office was suing Becker Farms, trying to recover unpaid wages and damages for multiple violations of federal and state worker protection statutes.  The author of that fax and many more faxes containing similar diatribes (at least one that was taken seriously by the Federal government), Donald Perry, was the father of one of the owners of Becker Farms and, while not a defendant in the original lawsuit that was filed in 2001, he became one in a later suit because of his retaliatory actions.  The hate and fear-filled message that defendant Perry sent to me was just a glimpse into the relentless retaliation plaintiffs experienced.

This article describes some of the retaliation tactics the defendant employed and summarizes the plaintiffs’ legal victories which FLSNY and co-counsel vigorously fought for and obtained, ending with a grant of summary judgment on the retaliation claim in the summer of 2009.

Labor Law, Civil Rights, and Housing Claims
Over the course of four years, Becker Farms underpaid the plaintiffs tens of thousands of dollars, failed to reimburse them transportation and visa expenses from Peru, discriminated against them based on their national origin, and housed them in housing unfit for human habitation.  In short, Becker Farms violated the Fair Labor Standards Act (FLSA), the federal regulations for the guest worker program 2, Title VII of the Civil Rights Act, New York Labor Law, New York Human Rights Law, and New York Real Property Law. 

Farmworkers are not entitled to overtime pay under federal or New York labor law – an unjust exclusion from worker protection statutes since the 1930s.  If a farmworker performs non-agricultural work, however, laws pertaining to overtime apply. The plaintiffs’ non-agricultural work at Becker Farms included construction projects, staffing recreational events like the Raspberry Jamboree and the Haunted Hayride, and operating the fruit and baked goods stand.  

Represented by FLSNY and the Farmworker Law Project, the plaintiffs brought suit in the Western District of New York (WDNY) in November 2001 against Becker Farms and owners Oscar Vizcarra and Melinda Vizcarra.

Litigation Against Perry To Enjoin Retaliation
Just a few days after filing suit, Donald Perry, former owner of Becker Farms and father of Melinda Vizcarra, began his campaign of retaliation against the plaintiffs.  It is important to note that this was just two months after the attacks of September 11, 2001 (9/11).  Perry went to the Immigration and Naturalization Service (INS) office in Buffalo to  report that the plaintiffs were members of the Shining Path (Sendero Luminoso), a Maoist terrorist group in Peru, and that they had formed a terrorist cell here in the U.S.  

He contacted every conceivable government authority – the U.S. and New York State Attorneys General, the U.S. and New York State Departments of Labor, the Department of Homeland Security, the New York State Police, the U.S. State Department – alleging, among other things, that the plaintiffs were terrorists, their attorneys at FLSNY were traffickers, and the primary witness was a “mule” in their smuggling and trafficking operation.  For the most part, the authorities saw through Perry’s baseless accusations.  However, the U.S. State Department believed him credible enough to send four diplomatic security service agents from New Jersey to interview him in Buffalo. Given the political climate and the secrecy involved in anti-terrorism efforts after 9/11, the fact that the State Department even met with him was troubling. 

In June 2003, the plaintiffs filed suit against Perry in the WDNY, alleging that Perry’s actions amounted to unlawful retaliation in violation of federal and state law for having filed a complaint against his family members and Becker Farms.3  

Perry continued his sensationalist and inflammatory accusations, via phone, fax, and radio appearances.  He harassed and stalked plaintiffs’ witnesses.  One of the witnesses told us she no longer wanted to testify, as the harassment was so severe.  

Good Reason to Fear for their Lives
There may have been the tendency among the  attorneys and government authorities close to the case to dismiss Perry’s diatribes as harmless, knowing that they were baseless.  The intimidation and harm caused to the plaintiffs, however, was tremendous.   In the post-9/11 era - when immigrants were being swept up in secretive government anti-terrorist operations with many simply disappearing--the plaintiffs had good reason to fear for their lives, even if Perry’s charges of   terrorism were false.

Judge Arcara issued a preliminary injunction against Perry, enjoining him from contacting federal and state agencies about the plaintiffs and their attorneys.4  The decision quoted Perry’s letter to the Court in which he indicated that he would “continue to track these terrorist sympathizers down for the Homeland Security Dept.”5  The Court underscored that “[u]nchecked retaliation, no matter its form, subverts the purpose of … federal employment laws” and noted that “the chilling effect of retaliation on migrant farmworkers in particular has been well-documented”6.  The Court pointed to the legislative history of the Agricultural Worker Protection Act, which recognized that “farmworkers who attempt to assert their rights must overcome a general background of fear and intimidation caused by the widespread practice of retaliation against those who complain about violations.”7

Perry violated the injunction multiple times, was held in criminal contempt by Judge Arcara, served time, and upon his release continued the retaliation.  His fax communications to our office now included accusations that the Court itself was aiding and abetting illegal immigrants.  He marked up excerpts of the Court’s decisions, inserting “False!” and “Lies!” throughout.  He said that FLSNY was duping the Courts and destroying agriculture in New York.  Magistrate Judge Schroeder and elected officials were often copied on these faxes as well. 

The plaintiffs filed for summary judgment on the retaliation claim and sought permanent injunctive relief.  In August of 2009, the Court granted summary judgment to the plaintiffs on the retaliation claim, but denied permanent injunctive relief, reasoning that because the underlying Becker Farms litigation had resulted in settlement, injunctive relief was no longer necessary.  
 
In granting summary judgment on the retaliation claim, the Court stated that it “can discern no rationale for defendant’s behavior other than a desire to attract the attention of government authorities to locate and deport plaintiffs so that they could not prosecute their … claims against … Becker Farms” and that “defendant was intent upon disrupting plaintiffs’ ability to pursue their lawsuit.”8  The Court concluded that “[t]he in terrorem effect of defendant’s actions upon plaintiffs and the organizations seeking to enforce the FLSA on behalf of claimants such as plaintiffs is patent.”9

Appropriately, the Court invoked the Latin phrase, “in terrorem,” meaning “so as to produce terror,” “by way of threat and intimidation,” and stemming from the verb “terrere” – to fill with fear, cause dread.  I do not think it is a stretch of the imagination to describe what the plaintiffs experienced as terror and dread.  

Clearly, the preliminary injunctive relief, the contempt order, and jail time did not stop Perry’s retaliatory actions.  Nor will Perry have to pay damages for the severe emotional distress he caused.  Unfortunately, the damages provision of the Fair Labor Standards Act only applies to employers and not to others, such as Perry, who retaliate.  

The Meaning of Victory
The victory achieved by the plaintiffs in this case is perhaps a Pyrrhic one; only they can decide if the cost to their personal lives and sense of security was worth it.

Even though the litigation may not feel like a huge personal victory for them, the plaintiffs do know that they are standing in solidarity with and supporting other workers who are vulnerable to exploitation, intimidation, and silencing because of immigration status or national origin.  By pursuing litigation against both Becker Farms and Perry, even in the face of in terrorem retaliation, they were able to establish case law of precedential and persuasive value to migrant workers in New York State and across the country.  The decision against Perry on summary judgment adds to the growing consensus in federal case law that reporting a worker to Homeland Security and other government authorities constitutes retaliation under the Fair Labor Standards Act, when a worker has engaged in a statutorily protected activity such as filing a complaint for unpaid wages. 

These days in rural upstate New York, intimidation and harassment of migrants is as severe as, if not worse than, the start of this litigation in 2001.  The overbearing presence of Border Patrol and ICE (Immigration and Customs Enforcement) makes it especially easy for unscrupulous employers and farm labor contractors to use the threat of deportation to silence workers from making complaints about workplace violations. The summary judgment decision, which speaks to such unlawful actions, is therefore particularly important and timely.

Footnotes

1  Molly Graver is an attorney with Farmworker Legal Services of New York.  For additional information please contact her at mgraver@wnylc.com.

2  The Federal H-2A program allows employers to apply to bring in foreign guest workers if the local work force can't meet the labor need’s of employers.  Employers must pay a set wage for hourly work, provide room and board and pay transportation costs for those from outside the area.  An estimated 75,000 guest workers entered the United States in 2008.

3  The plaintiffs were represented by FLSNY and Farmworker Law Project.  Over the course of the 6-year litigation, plaintiffs were also represented by Steve Cole of LeClair Korona Giordano Cole and by Workers’ Rights Law Center.

4  Decision & Order, 302 F.Supp.2d 128 [WDNY 2003]

5  302 F.Supp.2d at 133

6  ibid. at 135

7  ibid.

8  Rep. & Rec., July 14, 2009, at 17

9  ibid at 17-18