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“We knew OSHA was going to show up; we knew a lot of different law enforcement agencies were going to show up; and we knew that the workers were going to be undocumented, intimidated, and terrified,” she said.

Sur Legal hosted a Facebook Live gathering to educate workers on their rights and began talking directly to individuals who worked at the plant, many of whom had witnessed the incident and were now traumatized. Ultimately, Anand and her colleagues were able to help about two dozen workers from the plant access what she calls a “life-changing” pathway: they were temporarily granted protected status so that they could help federal investigators identify conditions that might have contributed to the incident—which ultimately represented violations of the law.

In the past, federal agencies have occasionally granted what they call “deferred action for labor disputes” at their own discretion. However, in January 2023, the U.S. Department of Homeland Security (DHS) formalized the process for the first time to encourage undocumented workers, who might otherwise stay silent due to fear of deportation, to report violations of labor laws on the job.

“It came out of DHS, but we look at it as a labor and a worker-rights policy,” said Jessie Hahn, a senior labor and employment policy attorney at the National Immigration Law Center (NILC). “It’s very much based on the perspective that the Biden administration has, about how best to enforce labor and employment laws and what is going to facilitate that.”

Between January 2023 and August 2024, according to DHS, more than 6,000 workers—many working in the food system—have been granted this temporary protection, which can last up to four years. They include the Georgia poultry workers, guest workers picking strawberries in Florida fields, and tortilla factory workers in Chicago, among others.

However, as the presidential election approaches, it’s one of several immigration policies that are at risk—and that would reshape the legal landscape for food and farm workers.

Both Vice President Kamala Harris and former President Donald Trump have used strong rhetoric about stemming the influx of new immigrants at the U.S.–Mexico border. But how they might treat the immigrant workforce that powers America’s fruit and vegetable harvests, meatpacking and food processing plants, and restaurant kitchens—a large percentage of which is undocumented—is more complicated.

Harris is currently serving in what some experts say has been the most hardline Democratic administration on border policy in modern history, especially since President Joe Biden’s June executive order limiting asylum claims. As vice president, she was specifically tasked with addressing the root causes of migration in origin countries.

During her years as a district attorney and then as the attorney general of California, her record was nuanced. She was tough on immigrants when they committed crimes, but expressed support for those who did not. Throughout, she has specifically defended the labor rights of immigrant workers, including introducing pro-farmworker legislation, and has been endorsed by multiple labor groups.

The Trump administration—and the 2024 Trump campaign—have taken a harder line on immigration and immigrants living in the U.S. In 2017, Trump implemented a “zero tolerance” border policy for families at the border and ended the deferred action policy, which previously gave the children of immigrants, called “Dreamers,” a path to citizenship. (Harris, a senator at the time, supported the Dreamers.) In addition, the second bullet point in the 2024 Republican Party Platform is to “carry out the largest deportation operation in American history,” with a goal of expelling millions of immigrants. During the recent debate, Trump repeatedly demonized immigrants using sweeping generalizations filled with misinformation about crime. ( Research shows immigrants do not commit crimes at higher rates than U.S.-born Americans.) “We have to get ’em out,” he said. “We have to get ’em out fast.”

People close to the issue told Civil Eats that, given the unspoken reality of how deeply farms and food businesses rely on undocumented workers, they’re more worried about worker abuse increasing under Trump’s leadership than about mass deportations.

“I think they want people to be scared,” Antonio De Loera-Brust, communications director for the United Farm Workers (UFW), said of the deportation threats. “They’re going to push [undocumented workers] more into the shadows, where they’re more vulnerable and exploitable.”

Empowering Immigrants to Report Labor Abuses

Deferred action is one piece of that work UFW has embraced; its organizers have been assisting farmworkers with applications, while the UFW Foundation has been working with the state of California to inform farmworkers about the option. To date, De Loera-Brust said UFW has helped more than 100 fieldworkers apply.

To be eligible, workers must get a letter called a “statement of interest” from a labor or employment agency. For example, if fieldworkers have reported safety violations to Cal/OSHA, California’s worker safety and health agency, Cal/OSHA must then send a letter to DHS indicating interest in launching an investigation before DHS will grant deferred action status. Groups like UFW often help facilitate that process.

Once they are granted the status, workers may be asked to provide information on labor violations they’ve experienced or witnessed. In Gainesville, for example, the nitrogen leak resulted in two federal investigations into what caused the incident and its fatalities.

“Several of these workers came forward to the Department of Justice, which has never been an immigrant-friendly agency, so that was 10 times scarier for them,” Anand said. “But they want to do everything they can to hold folks accountable for those deaths.”

As a result, OSHA investigators concluded Foundation Food Group and three affiliated companies “failed to implement any of the safety procedures necessary to prevent the nitrogen leak, or to equip workers responding to it with the knowledge and equipment that could have saved their lives.” The agency cited the companies for nearly $1 million in fines and a total of 59 violations. Foundation Food Group was acquired by another chicken processor, Gold Creek Foods, in September 2021.

In a later, more detailed report produced by the U.S. Chemical Safety and Hazard Investigation Board that workers also helped with, investigators again found the deaths had been “completely preventable.”

While it was too late to save the workers who died, one of the affiliated companies that leased the faulty equipment said it developed new safety protocols as a result of the report, and the investigators recommended OSHA issue a new national standard to address the hazards of liquid nitrogen, with specific emphasis on poultry processing and food manufacturing.

It’s an example of how the deferred action policy’s impact extends far beyond the individuals who receive the status, Hahn said. “We are trying to address the chilling effect that occurs in a workplace when people are too afraid to speak up about labor violations,” she said. “When those workers feel protected because they’ve received deferred action, then everyone in the workplace benefits.” In other words, supporters believe the policy makes workplaces safer for all Americans, immigrant or otherwise.

At Centro de Los Derechos del Migrante (CDM), which has headquarters in both Maryland and Mexico, staff members have been documenting the abuse of migrants who come to the U.S. through guestworker programs to work in agriculture and food processing for nearly two decades. Lucy Thames, CDM’s outreach project manager, said the deferred action process has also benefited those workers over the past year.

One challenge for workers in the H-2A program, which is for farms, and the H-2B program, which is for food processing, is that their legal status in the country is tied to their employer, making it difficult for them to report or escape abusive situations. But when guestworkers are granted deferred action, Thames explained, they are able to seek employment with any U.S. employer. “They’re able to leave a situation in which their rights aren’t being respected and identify an employer who might be a better fit for them,”she said.

That’s significant because in recent years, as farms have struggled to find enough workers to plant carrots and harvest tomatoes, the H2-A program especially has ballooned in size. CDM has been particularly focused on helping shape a recent Biden administration rule to expand protections for workers in that program.

Thames said the new rule contains many provisions CDM has advocated for, including allowing protection from being fired without cause, banning retaliation against workers who engage in union organizing, establishing transportation safety requirements, and ensuring support and advocacy organizations are able to visit workers in employer-provided housing.

The Post-Election View

On the other side, while Trump has not mentioned this H-2A rule since it was proposed, Republican lawmakers have been pushing back on many of its provisions. At the end of August, a federal judge sided with 17 Republican-led states in a lawsuit brought against the Department of Labor, blocking the Biden administration from implementing the provisions.

And at the end of Trump’s presidency, his administration published a different H-2A rule, which drew strong opposition from farm labor groups because it weakened worker protections. At the time, his Department of Labor said the rule would “streamline and simplify the H-2A application process, strengthen protections for U.S. and foreign workers, and ease unnecessary burdens on employers.”

The political ping-pong over the H-2A rules shows how, since immigration is so politicized, even small changes to labor policies that primarily impact immigrant workers are often the result of years of back-and-forth that span multiple presidential administrations.

“A lot of the developments that we’re seeing are many, many years in the making,” Thames said. “I think that’s often what we’ve seen in the farmworker movement.It’s decades of work done by advocates and workers themselves.”

Throughout that time, regardless of who’s in charge in D.C., U.S. food production has depended on immigrant workers. Multiple farmers who spoke to Civil Eats laughed at the idea of finding enough U.S. citizens to harvest kale and squash.

One organic vegetable farmer said she pays nearly $17 an hour to her H-2A workers but has still never had a domestic worker apply. (The law requires farmers to post the jobs for U.S. workers before bringing in guestworkers.) Originally, she relied on mostly undocumented workers living in the U.S., but recently has had to bring in more temporary guestworkers on H-2A visas. She’s hoping for a more long-term solution that recognizes the contributions of the immigrants who have powered her farm—some for more than a decade—and that would allow them to live and work without fear.

But with election rhetoric focused on border security and the recent failure of even the most middle-of-the-road legislation, unions and immigrant rights groups are zeroing in on the things that make a difference day-to-day.

Deferred action is “a Band-Aid on a big problem,” said Sur Legal’s Anand, since it doesn’t do anything to resolve longstanding questions around whether the country’s millions of immigrant food workers should be granted long-term legal status. But it has had a real impact on the Gainesville workers’ lives. “Some of these workers have left the poultry industry and found better paying, safer jobs, and they feel really empowered,” Anand said. “Now, they’re speaking up.”

“We don’t know what’s going to happen with this program,” she added, “but by and large, most of our folks that we’ve worked with are like, ‘If it gives me a few years of peace, of being able to be safe and to live my life without fear, I’ll do it.’”