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It is illegal to hire undocumented immigrant labor. The federal government imposes a fine that escalates the more the infraction continues. Severe abuse can result in jail time.
Agricultural labor which includes industries associated with it such as food processors is exempt from most of the provisions of the Fair Labor Standards Act, such as overtime pay and the minimum wage. The following summarizes the law.
In general, the FLSA minimum wage and overtime pay standards only apply to non-agricultural operations -- that is, farmers and farming-related business operations are exempt from some FLSA standards under certain circumstances. For example, agriculture employers do not have to pay workers for overtime pay, even if they work more than 40 hours in one week. If the same employer did not use more than "500 man days" of labor in a year, the employer is also exempt from the FLSA minimum-wage standard. The FLSA defines a "man day" as a day in which an agriculture employee worked a minimum of one hour. Agricultural employers are also exempt from the minimum wage law in other situations, including when employees are immediate family; are on the range working livestock operations; or are local hand harvest employees.
Nearly all agricultural production is mechanized; even tomatoes are mostly harvested by machines. The problem is after the machines have completed the harvest, only manpower is satisfactory for sorting and selecting the finished product for sale to either a food processor or wholesaler who further handles it prior to sale to the end user. Even nuts and other tree fruit is shaken from the tree onto the ground for further sorting.
Whether the employer commits an illegal act in hiring a migrant worker to sort and process his product, the employer is assured he does not have to pay any more than the minimum necessary to obtain the necessary labor. I do not know for sure but my guess is that like labor I hired to do measured work, the workers are paid by the output, units, pounds, bushels, etc. in which case the hourly rate is meaningless because the worker himself determines how much he makes, depending on the standard for the unit which is set by the employer. The vast majority of this work is temporary that is why the labor is called migrant. It is seasonal for the most part. Why Americans won’t do them is obvious; first, it is hard and demanding work because in order to earn more you have to produce more or be replaced, second, it is not a job with a future except more of the same. More importantly it is not labor the unions seek to organize. Even an employee in a McDonalds has the possibility of becoming a manager, or obtaining a higher paying job when one becomes available. If you start at the bottom you can only go so far and even if you start in the middle because you have a degree of some sort, your chance to reach the top of the heap is remote to say the least, that is why they call it the organizational pyramid. Only in government are there dozens of layers before you get to the top and those are unavailable except to political appointees.
The real problem the H-2 visa program (migrant worker) has created is not the employment of illegals but the fact that once they have the visa, they do not go back when its validity expires, just as those who got a student visa or visitor’s visa to come here and never went home. They are still here because the government does not enforce the program and for a very good reason; too many people who vote depend on them. Just as the IRS clamors for more agents because they could pay their way by catching tax cheats, or the local police who could pay their salaries by ticketing violators, the politicians don’t want to hear complaints from the voters about overzealous application of the law.
