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James R. Smerbeck

excerpted from: James R. Smerbeck, The Impact of Prohibiting Legal Service Corporation Offices from Representing Undocumented Immigrants on Migrant Farmworker Litigation, 45 Indiana Law Review 513 (2012) (263 Footnotes Omitted) (Student Note)


In July 2010, a federal court enjoined Arizona's controversial law that requires officers, where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States . . . to determine the immigration status of that As a result, the place of immigrants in American society-especially those who are undocumented or do agricultural work-is again prominent in the national discourse. The federal government has also been re-evaluating the role of the Legal Services Corporation (LSC) in the U.S. civil litigation regime, increasing its funding to approximately $420 million. It also allowed LSC offices to take attorney fee-generating cases under certain circumstances in 2009. In 2010, Congress proposed allowing LSC offices to undertake class action lawsuits. In light of these events, it is important to examine LSC's history with migrant and seasonal farmworkers, how that relationship has changed, and what effects those changes have had.

Each year hundreds of thousands of migrant and seasonal agricultural workers travel to Midwestern states to perform a wide variety of agricultural tasks. The number of migrants (workers and their families) varies widely by state, from approximately 10,000 in Iowa to more than 160,000 in Michigan in 1993. According to the U.S. Department of Labor, 53% of those workers are undocumented immigrants. In many cases, these workers experience very poor working and living conditions. Regarding working conditions, this has meant underpayment, undisclosed or unauthorized deductions, manipulation of wage rates by their supervisors, and a lack of job security. Regarding living conditions, [m]igrant farmworkers and their families are often forced to endure substandard housing conditions including structural defects, overcrowding, close proximity to pesticides and poor

To combat these conditions, two federal laws provide a private right of action for farmworkers and their families: the Migrant and Seasonal Agricultural Workers Protection Act (AWPA) and the Fair Labor Standards Act The AWPA generally requires that workers receive prompt, full payment and safe, healthy housing. The FLSA affords workers liquidated damages of up to 100% of their delinquent pay and provides for attorney fees. Each summer, farmworkers are informed of their rights under these laws by attorneys and interns from migrant farmworker legal programs traveling to the camps and hotels where workers stay. Many such programs are operated by Legal Services Corporation (LSC) offices, independent state legal aid offices that receive federal funding to provide legal representation for indigent community members. However, due to changes in funding in 1996, LSC offices are almost completely prohibited from representing undocumented workers outside of initial intake services. In many states there are no other legal aid organizations besides these offices for low-income individuals or families with dedicated programs to help migrant farmworkers. Therefore, many undocumented farmworkers lack the resources to bring their claims at all.

Part I of this Note presents a historical overview of the relationship between LSC and migrant farmworkers and the laws protecting workers. Part II discusses how LSC critics influenced the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRAA) and how the restrictions impacted LSC representation of migrant workers. Part III is an analysis of the Note's two hypotheses: (1) the prohibition on LSC offices representing undocumented immigrants has correlated with a sharp drop in migrant farmworker litigation; and (2) the litigation rates in states that do not have non-LSC offices handling migrant farmworker litigation are lower than those that do. Part IV offers specific recommendations on how to ensure the legal needs of all migrant farmworkers are adequately met.