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California may be the historical epicenter of the fight for migrant farmworkers’ rights, but a class action filed on behalf of female farmworkers began with a complaint from a laborer in upstate New York’s Cayuga County. The Northern District suit charges that three employment agencies that recruit migrant workers, almost entirely from Mexico, reserve the positions with the highest pay and greatest benefits almost exclusively for men. The plaintiff class could eventually encompass thousands of workers, most of whom work or worked in New York or the mid-Atlantic states, according to the plaintiffs’ attorneys. During discovery, the plaintiffs’ attorneys determined that in 1999 and 2000, for example, of the 19,753 workers that the defendant Del Al Associates employed in the higher paying positions, fewer than 2 percent were female. In the lower paying positions, nearly 19 percent of the 6,874 workers were female, according to Daniel Werner, who is representing the plaintiffs. Attorneys from Farmworker Legal Services of New York and Legal Momentum (formerly known as the National Organization for Women’s Legal Defense and Education Fund), filed the complaint in Olvera-Morales v. Sterling Onions, 322 F Supp 2d 211, in December 2002. The court denied a defense motion for summary judgment. The action began with the complaint from Marcela Olvera-Morales, which alleged that two classes of jobs exist for migrant farmworkers and that the defendants had deliberately steered her into the less desirable ones on the basis of her gender. The two classes of work can be distinguished by the visas held by individual workers. Under U.S. immigration law, workers on “temporary agricultural worker” H-2A visas receive comparatively high pay, free housing, written employment contracts, minimum work guarantees, transportation reimbursements and, for some positions, free tools. Laborers on “temporary worker, skilled and unskilled” H-2B visas receive lower pay and none of the H-2A benefits. Typical H-2A jobs include pruning, planting and harvesting fruits and vegetables. On farms, the lower paying H-2B positions usually involve tasks that straddle the fence between agricultural and non-agricultural work, such as sorting produce in packing sheds. (Other industries that employ large numbers of H-2B “seasonal, non-agricultural” workers include mining, tourism and canning.) Despite the substantial differences in the compensation and legal requirements associated with the positions, H-2A and H-2B work is described by the plaintiffs’side as often identical. H-2A and H-2B holders frequently work side by side, performing indistinguishable assignments, said Werner, an attorney with the Workers’ Rights Law Center of New York, which represents low wage workers in the Hudson Valley. “There’s a gray area between what’s H-2A and H-2B, and that gray area is packing sheds,” where H-2B workers sort and pack produce alongside H-2As, said Werner, who was previously with Farmworker Legal Services and remains a member of the plaintiffs’ legal team. And while women account for a significant portion of the annual national allotment of 66,000 H-2B visas, plaintiffs say almost all of the holders of the more desirable H-2A visas are men. Olvera-Morales, an unskilled worker from Mexico, claims that the agencies for whom she has worked since 1999 have consistently placed her in H-2B positions. “In a number of circumstances there is little distinction between the jobs classified as ‘agricultural’ and ‘non-agricultural,’ ” according to the complaint. “ When a woman applies to be placed by [the defendants] in a guestworker position, [they] almost always send the woman to work in an H-2B position and not in an H-2A position.” The defendants are three employment agencies: North Carolina-based International Labor Management Corporation, the North Carolina Growers Association and Texas-based Del-Al Associates. SOME SETTLEMENTS Olvera-Morales also filed individual claims against four Cayuga County, N.Y., agricultural companies with shared ownership: Sterling Onions, Zappala Farms, Zappala Holding and Zappala Enterprises. Those claims were settled when Olvera-Morales accepted the companies’ offer of judgment. The offer equaled the full amount of the wages and benefits she would have earned if she had worked on an H-2A rather than an H-2B visa, according to Jennifer Brown, legal director of Legal Momentum. The offer more than doubled Olvera-Morales’ earnings for the approximately five-month period covered by the complaint. (The offer was subsequently superseded by the settlement agreement in a wage and hours claim that Olvera-Morales filed against the companies, the terms of which are sealed.) The decision for the defeated summary judgment motion gives a preview as to possible strategies for the defendants in a subsequent summary judgment motion or at trial. The companies set forth numerous defenses, none of which was dismissed out of hand by the district court. The defense argued, among other things, that Olvera-Morales failed to satisfy the criteria necessary to bring forth a Title VII action. Specifically, she lacked legal authorization to work in the United States when she applied for the original job and, therefore, was not “qualified for the [H-2A] position” as required by the law, the defense said. U.S. District Judge Norman A. Mordue disagreed. “It appears that plaintiff and defendants anticipated that, as part of the application and hiring process, plaintiff would obtain proper documentation prior to beginning work, and indeed, this is what occurred,” Mordue wrote. The court “observes that a categorical ruling that a foreign national has no protection against discriminatory hiring practices simply because she applied to work in the United States a few days before receiving INS documentation has the potential to invite abuse by employers and to undermine the goal of Title VII.” The lead attorney for International Labor Management and the North Carolina Growers’ Association also said that those companies did not discriminate. “There’s a lot of jobs in this country where there’s disparity in gender but there’s not discrimination,” W. R. Loftis Jr., a managing member of the Winston-Salem, N.C.,office of Constangy, Brooks & Smith, said in an interview. “There are certain jobs that tend to be predominantly female and certain jobs that tend to be predominantly male.” Werner, the plaintiffs’ lawyer, disputes the idea that such nondiscriminatory explanations as the physical demands of the work or the workers’ cultural preferences explain away the discrepancies. “When people apply for these jobs, they don’t go to these people and say, ‘I want to work in a seafood cannery,’” said Werner. “The recruiters go to these people. It’s not really for the worker to make a specific request.” The earliest a trial could begin, according to the schedule set forth by the court, is March 2006. Attorneys from Kaye Scholer have joined the plaintiffs’ team to assist with trial preparation.

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