Red chile and red tape
Accusations of wage theft prompt legislators to consider stiffening rules for the state’s farmworker pay program
A worker sorts through piles of harvested Red Chile in Hatch, N.M. in December 2021. (Photo by Santana Ochoa for Source NM)
Chile farmworkers have alleged that a contractor stole wages he got through the Chile Labor Incentive Program, a $5 million government fund that raised pay to ease the labor shortage and save the harvest of the state’s staple crop.
An investigation by the state Department of Workforce Solutions concluded that the farmer did nothing wrong, according to documents provided to Source New Mexico by the New Mexico Department of Agriculture. And the president of the New Mexico Chile Association called the allegations “bulls***,” saying chile farmers he knows would never break a promise to their workers.
But the specter of wage theft has worried advocates — and, now, lawmakers — since the launch of the program, one that boosted wages for thousands of low-income and often immigrant workers. An attorney told Source New Mexico late last year that he regularly got calls from workers concerned they’d not received the pay bump.
An investigator twice visited the sites where employees hired by the accused company were harvesting this year’s chile crop and spoke to at least 20 employees. Those employees told her they were not cheated out of their wages, the investigator wrote, according to the documents.
The company received as much as $19,000 a week on behalf of as many as 128 employees at one point, according to documents Source New Mexico obtained via an Inspection of Public Records Act request. The company received about $150,000 total in wage boosts, according to the records. The owner did not respond to a request for comment Tuesday night.
Source New Mexico is not naming the owner because he has not been formally accused of a crime.
Lawmakers on Tuesday introduced a last-minute change to the bill that allocated $2.2 million remaining to be spent from the fund. The substitute bill added additional regulations to prevent farmers and contractors from pocketing government money rather than passing it onto employees, sponsors said.
“The wage theft report remains unconfirmed by my office, but the rumor of such is concerning enough to ensure the bill provides guardrails and prevents any such abuse,” said co-sponsor Sen. Crystal Diamond (R-Elephant Butte), in a text message to Source New Mexico.
The new version of the bill requires that farmers and contractors provide payroll ledgers for each employee and also requires the Department of Agriculture to compile a report on the program’s effectiveness for lawmakers’ review.
Members of the Senate Conservation Committee approved the bill Tuesday. It still needs approval through another committee, the rest of the Senate, the House and the governor before the money can be spent.
Co-sponsor Sen. Jeff Steinborn (D-Las Cruces) said it’s critical to the harvest that lawmakers approve the money.
“It’s completely possible and has happened that some of these crops would not get harvested at all,” Steinborn (D-Las Cruces) told the committee, if the money isn’t spent.
The labor shortage was estimated to be about 45% of the typical number of chile farmworkers, or about 1,450 people, according to the Governor’s Office.
The program boosted wages for farmworkers by as much as $4.50, helping them earn up to $19.50 an hour. For many workers who make the state’s minimum of $10.50 an hour, the program would jump their wage to $15 an hour.
Between August and December, the program paid about $2.8 million in federal relief funding to about 3,000 workers, according to the Governor’s Office. The program was halted Dec. 3, the casualty of a dispute between the governor and some legislators. The remainder can only be spent through an appropriation by the Legislature this session, lawmakers have said, though some experts have said the money could have been spent all along and this headache completely avoided.
Wage boost for chile workers hangs in the balance, though some say the state could make it happen
The extra money is paid to farmers and contractors, who affirmed in their applications that they would pass it on to employees.
But that didn’t happen in at least one case, according to Felipe Guevara, an attorney with the New Mexico Center on Law and Poverty who works with farmworkers.
“We have heard from workers who did not receive the increase even though their employer received the funding,” Guevara told the Senate Conservation Committee Tuesday.
Maria Archuleta, a spokesperson for the center, declined to elaborate on the workers’ allegations, saying the center is still researching. But she did say the center stands by Guevara’s comments.
In October, a worker told an Agriculture Department employee who oversees the program that she received just $50 for two weeks of work. It’s unclear from documents reviewed by Source New Mexico what she was owed. She was contracted by a company that provides employees to farms.
Agriculture officials sought help from the Department of Workforce Solutions, which looks into wage theft. In a follow-up email, the employee said there were discussions of “possible wage theft some of our agricultural sites.”
In mid-November, a labor law administrator wrote to her superiors that she’d visited the farm and concluded no such theft had occurred and no additional investigation was needed. She wrote that she’d visited the site on two occasions and spoke to 20 employees, who said they’d not been shorted on their hourly wages or their weekly bonus, provided through the state program.
“My investigation did not find any discrepancies with hourly pay nor the CLIP funds,” she wrote. “I am certain a Directed Investigation is not required at this time, nor any further followup is needed with this incident.”
The employee who complained was also questioned and told the investigator she was “happy” with the site visit, the investigator wrote. The employee also referred another employee to investigators, though it’s not clear from the documents what that employee said.
Archuleta with the Center on Law and Poverty did not respond to a request for comment on the department’s findings.
‘A hungry attorney’
Glen Duggins, president of the New Mexico Chile Association and himself a chile farmer who received CLIP funds, defended his fellow growers as honest people who would never cheat, and he blasted the additional requirements being worked into the rules as red chile red tape.
“This is nothing more than a hungry attorney and a bunch of bulls***,” he said.
The program, while helpful, has already been a huge pain, he said. It requires too much paperwork to enroll individual workers in such a high-turnover field, he said.
These additional requirements will mean some farmers won’t find it worth it to participate, and that will hurt the chile crop, he said.
And it’s ironic, he said, that the government would be so worried that farmers wouldn’t pass the extra wages on when it was the government that abruptly withdrew the funds and cut their wages, due to the legal fight in early December.
Red chile labor program comes to abrupt halt due to fight between governor and Legislature
“Who the hell they talking about?” he said. “Who’s the crook here?”
Tim Day, executive director of the Chile Association, said he expects chile farmers will soon invest widely in machine harvesting due to the labor shortage. It’s just a practical solution to short-staffing he doesn’t think will change anytime soon.
And eventually the government fund will run dry, he said.
“It’s not even a matter of cutting labor,” he said. “You know, this is finding an alternative to labor that we don’t have.”
New Mexico farmers produced nearly $52 million in green chile in 2020 from 8,500 acres, according to the United States Department of Agriculture statistics, up from $50 million in 2019.
A last-minute substitute
If you wanted to weigh in on the legislation or take a look at the language, you wouldn’t have been able to. The substitute bill was not published before the meeting or posted online before it was voted on by lawmakers and passed along to the next committee.
Chris Nordstrum, a spokesperson for Senate Democrats, said the bill isn’t part of the public record until it is read into the committee report on the Senate floor. It wasn’t sent to the floor quickly enough to become read and adopted, he said.
That means senators considered and approved legislation that the public had no chance to read or weigh in on.
Steinborn did not respond to a request for comment Tuesday, and Diamond, the co-sponsor, did not make time for an interview. Neither did Sen. Liz Stefanics (D-Cerrillos), who chaired the Conservation Committee.
Nordstrum said that the public will still have plenty of time to review the bill.
“It still has another committee, the Senate floor and the House of Representatives to get through,” he said. “Soon after the committee report is read out and adopted on the floor, the sub will be made available for review.”
He also provided a copy of the bill to Source New Mexico. It is published below:CLIP
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