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Lansing — The state’s Civil Rights Department is opposing Attorney General Bill Schuette’s interpretation that Michigan’s smallest farms can pay seasonal and migrant workers less than the state’s minimum wage.

Allowing some small farms to legally pay below Michigan’s minimum wage of $9.25 an hour will have a “chilling” effect on farmers already struggling to find enough seasonal workers, said Agustin Arbulu, director of the Michigan Department of Civil Rights.

The warning comes after Schuette issued an opinion in late December arguing that some small farms are exempt from the state and federal minimum wage laws. The federal minimum wage is $7.25 an hour.

Arbulu is not arguing that Schuette’s interpretation amounts to discrimination and his department is not planning to take any action, legal or otherwise, to push back against the attorney general. But the civil rights official warns that the position of the Republican attorney general, who is running for governor, could exacerbate a longtime labor shortage at farms.

The pay fight comes as U.S. farmers are already struggling with low commodity prices and declining income.

“The issue becomes the optics, the optics being that the word gets down to the farm worker community that resides outside of Michigan that now Michigan is not paying the minimum wage,” Arbulu said in a Detroit News interview. “So now that has a chilling effect on farm workers lining up to come to Michigan.”

Schuette spokeswoman Andrea Bitely defended the opinion, saying it is a correct reading of current law.

“The attorney general does not have the power to create law, only enforce and interpret,” Bitely said. “I would encourage anyone who believes that our laws need improvement to talk with members of the Legislature and work to make positive change.”

Although it’s difficult to calculate because of the complex state definition of “small farm,” Arbulu said farms employing five or fewer farm workers in any given quarter would likely fall within the state’s criteria.

State officials and lawyers at nonprofits representing migrant laborers say it’s impossible to estimate just how many small farms hire seasonal laborers. But the most recent U.S. Department of Agriculture farm census in 2012 recorded more than 19,000 workers at nearly 10,000 farms across the state that employ between one and four people in Michigan.

Complicated farm scene

The Michigan Farm Bureau says the picture could be more complicated than it appears because farms could employ more workers during part of the season than during others and that number may not be stable across multiple seasons. The census also might include small operations not normally thought of as farms, such as a family tending to its backyard bee farm.

Farms usually pay migrant laborers $12.75 an hour, according to farmers and the Michigan Farm Bureau. It was the federally required wage in 2017 for those who traveled to Michigan to work under the federal H-2A visa program, which allows certain U.S. employers to hire foreign nationals to fill temporary agricultural jobs.

Russell Costanza, a 70-year-old tomato and cucumber farmer near Sodus Township, said he can’t imagine anyone paying less.

“If you’re involved in a federal program like H-2A, the H-2A supersedes it,” he said.

Mark Halbert, owner of Halbert Dairy Farm north of Battle Creek, said every farmer he knows is paying more than minimum wage because it’s so hard to find workers. He said it’s unlikely anyone would work for less than the minimum wage.

“It’s a tight labor market right now,” Halbert said.

But in 2015, a family of five migrant farm workers from Texas were paid the equivalent of less than $4 per hour working at an asparagus pickling operation in Oceana County, according to the Farmworker Legal Services, a nonprofit in Kalamazoo.

The family filed a complaint with the Michigan Department of Licensing and Regulatory Affairs, but the department said then the workers weren’t protected by the state’s minimum wage law. LARA argued that piece-rate work and small farms are excluded from minimum wage laws, according to the nonprofit.

In June 2016, Gov. Rick Snyder tried to clarify the situation by issuing an executive order giving new authority to LARA, which then released a rule requiring piece-rate farm workers to be paid “at least equivalent to the minimum hourly wage rate.”

But the rule doesn’t apply retroactively to families like the one working in Oceana County. It also does not apply to workers at small farms, according to Schuette’s opinion.

Foreign worker surge

The number of foreign workers allowed on Michigan farms has surged nearly 14 fold from 276 laborers in 2011 to 3,800 in 2016, according to the U.S. Department of Labor. But that is a small fraction of the roughly 40,000 to 45,000 migrant workers who come to Michigan annually to help pick crops, according to the Michigan Farm Bureau.

The state minimum wage law still applies to large farms, which likely hire the bulk of the state’s migrant labor force, said Craig Anderson, who manages the agricultural labor and safety services program for the Michigan Farm Bureau.

“By and large it is a little bit difficult to find the farms that would be covered by this opinion,” Anderson said. “The economics of this situation is you’re simply not going to be able to seek any number of workers willing to work for lower wages.”

“Being a wage competitive industry the vast majority of farms as you see pay well above even the current state minimum wage,” he said.

Dale Freeman, director of the office of migrant affairs for the Michigan Department of Health and Human Services, said state officials have not been able to come up with a good estimate on how many small farms employ migrant workers.

He declined to comment on whether it was ethical to pay some workers less than minimum wage.

“It’s up to the Legislature to decide whether changes are necessary,” he said, adding that the department is “looking at how to better communicate” the state’s wage laws to farms and workers so they know what to expect.

mgerstein@detroitnews.com

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