Munger Bros. and associated farms must pay  $3.5 million, use H-2A only with conditions

WHATCOM ­— Munger Bros., the parent company of blueberry grower Sarbanand Farms LLC of Sumas, will pay $2.5 million in back wages to about 3,000 foreign workers, plus a $1 million penalty, as the result of investigation by the U.S. Department of Labor into 2017 harvest hiring practices.

Documents of the settlement were filed Nov. 18 in Eastern District of California U.S. Court, Bloomberg Media reported shortly afterward, and U.S. Labor put out a press release Dec. 9 giving its version of investigation and actions.

The crux of claims is that Munger — one of the largest producers of blueberries in the world — violated provisions of the H-2A visa program and the Migrant and Seasonal Worker Protection Act.

The labor department says Munger — as well as Sarbanand, one of two subsidiary companies — is enjoined for three years from participating in the federal H-2A foreign farmworker program and from using the services of H-2A labor contractors. If the services of an H-2A labor contractor are used, the employers must continue to recruit, contact and rehire any U.S. workers.

According to U.S. Labor, the judgment further requires that when Munger Bros. and related companies use the H-2A program they must first contact any area farm labor contractors to meet their labor needs, purchase radio advertisements to announce available jobs, only hire transportation-authorized farm labor contractors, and implement an enhanced compliance monitoring program of their labor contractors.

Investigators for Labor’s Wage and Hour Division found that Munger, Sarbanand and Crowne Cold Storage LLC violated the H-2A program by unlawfully giving preferential hiring treatment to temporary foreign agricultural workers and failing to recruit, contact and rehire U.S. workers, including those previously hired through farm labor contractors.

The agency said its investigation also revealed the grower failed to provide safe housing to H-2A workers, pay workers the required rates of pay, including for time spent traveling and waiting for transportation to and from  job sites, and provide safe transportation to H-2A workers.

Investigators found that employers used farm labor contractors to provide transportation services without being authorized, failed to provide workers with all the terms and conditions of employment, and failed to keep accurate records of actual hours worked each day for all employees.

“The U.S. Department of Labor will use all available legal tools to ensure employers comply with their obligations under our agricultural labor visa programs,” said Solicitor of Labor Kate S. O’Scannlain in the press release.

Sarbanand Farms was the focus of a 28-year-old H-2A farm worker’s death in August 2017. The employer said at the time it was the result of the man’s unreported diabetic condition, and a later six-month state Labor & Industries investigation did not find Sarbanand at fault for the death. Subsequent protest of the death and of working conditions at the Rock Road operation in August 2017 led to the dismissal of about 65 other farmworkers there a few days later when they did not report for work, Sarbanand said. 

Munger Bros., which didn’t admit any wrongdoing, also agreed not to seek H-2A visas for foreign farm workers for the next three years, Bloomberg reported.

The H-2A program requires employers to make efforts to hire qualified American citizen workers before turning to visa-holders. Labor claims Munger Bros. rejected some qualified citizen workers and delayed bringing in others until after running out of H-2A workers.

“We hoped for a more fair resolution of the matter, but we accepted the settlement,” Tad Hoppe, an attorney representing the company, told Bloomberg Law. “We’re going to move forward and continue to be a good employer.”

The settlement comes as the Trump administration continues to crack down on visa abuse, primarily involving H-1B workers in tech and other white-collar jobs, Bloomberg reported.

Separately, a group of 600 farm workers on H-2A visas sued Munger Bros. and its subsidiaries last year, alleging that the companies violated labor trafficking laws by threatening to send workers home if they complained about conditions.