No Safety Net

Farmworkers can't access retirement benefits because of underreported wages

Maybe you’ve already spent half a day in your kitchen stuffing baggies with roasted chile for the long winter ahead. Or maybe you’re still hoping you get this job done before it’s too late. Unless you stocked up from a local grower at the farmers market, you might also want to consider a less poignant part of New Mexico’s favorite harvest.

The farmworkers who pick our renowned green chile in southern New Mexico labor under a brutal sun, picking chiles on their knees, and, in spite of the difficulty of the job and vegetable's hot fame, live in poverty. It doesn't get any easier when they retire.

After decades of working on farms, planting and weeding in addition to harvesting, many workers learn when they reach retirement age that they are eligible for few, and sometimes no, benefits from the federal Social Security Administration because the unscrupulous contratistas (labor contractors) who hired them routinely stole their wages, usually underreported their incomes and, often, didn't issue them W-2s.

Workers tell SFR they've had Social Security deductions withheld from their wages, but those who hire them are often pocketing that amount rather than actually participating in the system. Asked to describe the extent of the problem, Santa Fe attorney Tess Wilkes says, "The word 'rampant' comes to mind."

Wilkes, who has provided representation for farmworkers for several years, is one of a small cadre of lawyers facing a widespread issue.

Sixty-six-year-old Antonio Zubia Hernandez worked for 29 years on farms but only receives $338 in Social Security benefits and a couple hundred more in Supplementary Security Income and food stamps each month. He says contratistas underreported his earnings for 19 of the 29 years he worked; in all those years, only two contratistas gave him accurate W-2s, and because the rest didn't, he's not getting enough money to survive now.

Zubia Hernandez supplements his income by buying cheap cigarettes in Ciudad Juarez. In El Paso, he sells single cigarettes for whatever people care to pay. "I sell them so I can eat," he says, "buy a soda, a burrito." Still, there are days he goes without eating.

And his story isn't unique. Of 17 farm laborers interviewed for this article, 16 say they rarely get all their W-2s, and those they do get often underreport their income.

Social Security regulations are complicated but boil down to this: A worker must work 40 quarters over a lifetime and earn a minimum amount in each quarter to qualify for benefits. In 2015, it's $1,200 per quarter. The more workers earn, the higher their monthly benefits when they retire. If wages aren't reported, or are underreported, workers may not qualify for that quarter, jeopardizing their eligibility.

If workers don't get correct W-2s, they can still file a tax return using pay receipts. Few laborers save all their receipts, but several workers SFR interviewed did, and their records clearly show instances of wage theft and Social Security fraud.

Take the case of one 45-year-old native of Chihuahua, who didn't want to be named: The man, who lives at the Sin Fronteras shelter in El Paso during the chile harvest, has worked in the fields for six years and diligently saves his pay receipts, keeping them in a plastic bag stuffed in his backpack.

In 2012, those documents show he worked for two contratistas, earning $4,300; $266 was withheld for Social Security. Neither contratista sent him a W-2 or reported him as an employee. With the help of a lawyer, he filed a return using his receipts as proof of income. Without them, he couldn't have claimed that income, which was 60 percent of what he earned, and wouldn't have gotten credit for the quarters he worked.

"Clearly, the contractors paid him," says Sarah Rich, a former attorney at Texas Rio Grande Legal Aid, who represented the man. "They deducted Social Security, wrote down that deduction on a pay stub and never paid [it] because they never reported him as an employee. It's a very clear example of Social Security theft."

Rich says the man worries he won't have enough quarters to receive benefits when he reaches retirement age. But he's young and diligent enough in keeping records that he should be OK. Not all workers are so lucky.

Margarita Ortiz, who's 64, was a farmworker for 35 years and receives only $200 a month from Social Security. She says she never got W-2s or receipts. Whenever she asked for them, she says she was told, "We do not give receipts or W-2s." Her husband, who's 78, still works in the fields because he's only receiving $300 in benefits. Ortiz' high blood pressure prevents her from doing farmwork, so "collecting cans is my work now," she says.

Every afternoon, when workers return from the fields, Ortiz, who looks perpetually tired, walks the block from her apartment to the Sin Fronteras shelter, to pick up soda and beer cans that workers have discarded, her grandchildren often helping. One week, she earned $16 for 30 pounds of cans. "It is not enough," she says sadly, "but what can one do?"

Laborers rarely complain, because they fear contratistas will retaliate. "I know workers who [complained]," says Zubia Hernandez, "and they were out of a job." But the feds can't investigate unless a worker files a complaint. Still, workers prefer to remain silent and continue working.

When there's no work, Esteban Telles Gaspar sits inside Sin Fronteras, playing word games in the local newspaper. At 71, he's still wiry and strong, his skin burnished, the result of a lifetime working in the sun. Despite his age, he still works. He has to. "I get $212 a month in Social Security," he says. "[Some] contratistas did not report any Social Security. I have to keep [working] so I can eat and live." Telles Gaspar claims he isn't angry. "What can I do?" he asks, shrugging. "I'm not angry, but they are going to pay to God."

Joseph Sorrentino is an independent journalist based in Albuquerque.

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