Updated, 5:48 p.m. with comments from Arbulu, Scholten, LARA and the Farm Bureau.
The Michigan Civil Rights Commission is asking Attorney General Dana Nessel to reconsider whether Michigan’s smallest farms can legally pay migrant farm workers less than minimum wage.
The request comes after former Attorney General Bill Schuette issued a 2017 legal opinion arguing that certain small farms in Michigan do not have to abide by Michigan’s minimum wage of $9.25 an hour. Schuette upheld a 2016 state interpretation that some small farms do not have to pay it because they are exempt from federal minimum wage law.
Michigan Department of Civil Rights Director Agustin Arbulu warned last year that the ruling could have a “chilling” effect on farms already struggling to find seasonal laborers amid concern that increased federal immigration enforcement may scare off migrant farm workers.
Arbulu said in a statement Monday that the request to reconsider Schuette’s migrant labor pay opinion will “send an important and significant message to migrant and seasonal farm workers.”
“The actions by the Commission will help us continue to focus our work on protecting some of the most vulnerable people providing incredibly important work for our agricultural economy,” he continued.
The commission also approved a motion “reconfirming the body’s commitment to fair housing” for migrant workers. The motion includes “a focus on preventing restrictive zoning ordinances and laws which could violate Michigan’s Elliott Larsen Civil Rights Act,” according to a press release from the commission.
Instances in which employers have separated housing units based on marital status, gender and age could violate the state’s civil rights act, the commission said.
A family of five migrant farm workers filed a state complaint after making the equivalent of $4 an hour in 2015 at an asparagus pickling business in Oceana County, according to the Kalamazoo-based nonprofit Farmworker Legal Services.
Former Gov. Rick Snyder issued an executive order in 2016 requiring that laborers paid on a piece-rate basis earn at least minimum wage. That order didn’t apply to the Oceana County family, however, because the order was not retroactive.
Michigan Immigrant Rights Managing Attorney Susan Reed said she hopes the attorney general overturns Schuette’s opinion.
“We think Attorney General Schuette was wrong,” Reed said. “We think LARA [Department of Licensing and Regulatory Affairs] was wrong, and we think it’s urgent that the issue be revisited because we’re talking about some of the state and country and the world’s most vulnerable workers — left with no protection by the state’s prior interpretation.”
Reed and migrant labor lawyers and state officials have said it’s impossible to estimate how many small farms the opinion may apply to because of the unfixed nature of seasonal work and the complicated metrics that the federal government uses to determine which farms are exempt from federal minimum wage.
“It’s not only difficult for reporters and lawyers to really understand which employer it effects, it’s difficult for employers to understand,” Reed said. “It’s impossible for employees to know at the time that they agree to work. And that’s why it’s so insidious.”
Arbulu said it’s difficult to understand which farms the opinion might apply to, and so nearly impossible to enforce.*
“A farm could abuse it,” Arbulu said in an interview with the Advance. “How do you monitor it? How do you provide oversight to determine whether a farm worker is subject to minimum wage protection or not?”
Because more than half of the migrant workers who come to pick crops during Michigan’s growing season are undocumented, they’re less likely to come forward with complaints. The opinion just makes the potential for exploitation all the more likely, Arbulu said.
“Absolutely, it’s a rolling back of protection for a vulnerable population that has limited resources, practical resources that they can take advantage of,” he said.
Many migrant workers are employed for short periods of time, even just a few days, said Michigan Immigrant Rights Council staff attorney Hillary Scholten.
“There’s no contract. There’s no negotiating the terms,” she said. “We see a lot of undocumented workers working on these farms and very easily exploited by these terms.”
“It’s just the most fundamental workers’ rights protection that we have, and clearly this flies in the face of our minimum wage laws, particularly here in Michigan,” Scholten continued.
In 2016, officials from LARA asked the Republican attorney general to offer an opinion on the matter.
But in an email on Wednesday, LARA spokesman Jason Moon wrote, “We support the Michigan Civil Rights Commission’s right to seek a new opinion from the Attorney General.”
Craig Anderson, manager of agriculture and labor services for the Michigan Farm Bureau, told the Michigan Advance that there are many exemptions to the federal minimum wage law.*
“We follow the laws that exist and the minimum wage payment is going to apply as the statutory requirement allows for it,” he said. “The Legislature makes the laws. We have every interest in following the laws that exist. I would disagree that exploitation occurs when you’re following the law, as it exists.”