A federal jury has awarded a Madras man $190,000 for emotional distress and $17,000 for lost wages after finding that Oregon-based Cal Farms violated his rights by hiring temporary foreign workers over him, a qualified U.S. citizen, for seasonal field work.

Virgilio Carvajal sued Cal Farms, a family-run grower, packer and shipper of more than 30 organic and sustainably grown fresh market vegetables, alleging the company discriminated against him because of his U.S. citizenship in favor of foreign workers. The company operates farms in Madras, Oregon City, Boardman and Portland.

The case centered on Cal Farms’ use of the federal agricultural guest worker program, known as H-2A, which allows agricultural employers to bring temporary foreign workers into the United States but only if there aren’t enough qualified U.S. workers for the jobs. The company also must show that using foreign workers won’t undermine wages and working conditions for U.S. workers.

The federal program allows employers to recruit adults in foreign countries to enter the United States for up to a year at a time on temporary visas and is intended to help farmers handle seasonal spikes in labor needs.

From fiscal 2018 through 2023, the number of approved H-2A jobs and visas increased by more than 50% in the U.S., with the State Department issuing almost 310,000 H-2A visas in 2023, according to federal records. The vast majority, or almost 90%, were in the farmworkers and laborers, crop, nursery and greenhouse occupation category.

The verdict is striking because it’s rare to get a damage award for emotional distress and to find a company discriminated against someone based on their U.S. citizenship, said D. Michael Dean, one of three lawyers who represented Carvajal from the Northwest Worker Justice Project, a nonprofit legal firm that represents low-wage, immigrant and non-salaried workers.

“But for the fact that Mr. Carvajal was a U.S. citizen, he would have enjoyed the benefits of a contract that he was entitled to,” Dean said.

Carvajal, now 61, was an experienced farmworker who applied for work covered by Cal Farm’s H-2A contracts in 2019 and again in 2020. A native of Mexico, he became a U.S. citizen in 2013. He had been referred to Cal Farms by the Oregon Employment Department.

His lawyers said he was never hired to work in the field in Madras either year.

That’s despite Cal Farms representing that it would hire qualified, eligible U.S. workers who applied for such jobs during the first half of each contract period, as required by law. Cal Farms agreed to reject U.S. workers only for lawful, job-related reasons.

“The point wasn’t that H-2A workers don’t get to work. The point is we can’t allow the H-2A worker program to make it impossible for a U.S. citizen and lifelong farmworker to not be able to support his family,”Dean said.

Cal Farms hired dozens of temporary, non-immigrant H-2A workers for the positions that Carvajal had sought, his lawyers argued.

Cal Farms countered that the company won’t rehire workers who failed to complete their contract and found that Carvajal had previously done farm labor for the company in 2008 but worked only 10 days, contending he quit during the busiest time of the harvest and with five more months of available work remaining.

Carvajal said the company laid him off in 2008. Cal Farm’s records showed only the dates that Carvajal worked in 2008 but were silent about the circumstances, according to court testimony.

Carvajal volunteered during his 2019 interview that he had worked for the company in 2008 and Cal Farms determined he was ineligible for rehiring, according to court records.

Yet after further talks with a state monitor for the Migrant Seasonal Farmworker Program, Cal Farms agreed to hire Carvajal and had him attend an orientation, where he accepted the company’s offer of employment.

But unseasonably cold and wet weather in Madras in April 2019 halted crop harvesting work and Cal Farms told Carvajal it would call him with a start date. Cal Farms failed to call him until that June and he had found work elsewhere by then, his lawyers said.

According to the 2019 job order, the temporary H-2A workers were set to start working that year for Cal Farms on March 1, 2019, through Dec. 15, 2019, and the company had hired dozens of temporary, non-immigrant foreign workers for the job that Carvajal had sought, his lawyers said.

Cal Farm had brought in 40 or so non-immigrant workers to work in Madras, and the company transported three of the workers free of cost to work on a farm in Oregon City, Dean said.

“It’s pretty clear that he was sitting around waiting for a call to go to work while other H-2A workers were being housed, transported and employed for at least two weeks, while he was cooling his heels,” Dean said.

Carvajal was described by Dean as the head of his household who managed to put two of his five children through college “by basically back-breaking seasonal farm work.”

He’s proud of his work but after some time, “he was just reduced to nothing,” Dean said. When he applied to Cal Farm in 2019, he hadn’t worked since the previous October.

When Carvajal reapplied for a job with Cal Farms in June 2020, the company told him he was not eligible – this time citing his decision not to show up for the 2019 job when the company called him for work, according to its lawyers.

Timothy J. Bernasek, a lawyer for Cal Farms, said in court records that the decision to reject Carvajal’s application then was tied to “a lawful, job-related reason.” Bernasek didn’t respond Tuesday to messages seeking comment.

The eight-member jury returned the verdict on Feb. 7 after a four-day trial before U.S. District Judge Adrienne Nelson in Portland.

The jury agreed that Cal Farms violated the terms of the Migrant and Seasonal Agricultural Worker Protection Act in 2019 and 2020 and discriminated against Carvajal in 2019. The jury, however, found Cal Farms didn’t discriminate against Carvajal in 2020.

Dean said he couldn’t explain the jury’s split decision.

The H-2A program, though widely used in most states, is fairly new to Oregon and growing rapidly. Both U.S. citizens and foreign workers brought to work under the program are paid about $15 an hour, but the temporary non-U.S. citizens are required to work only for the employer that contracts with them, while the U.S. citizen can move around.

— Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, or on LinkedIn.

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