The lawsuit was brought by the groups Farmworker Justice and Iowa Legal Aid in the U.S. District Court for Northern Iowa on behalf of Carel Hanekom, a 59-year-old H-2A guest worker from South Africa.
The case was first reported in the Iowa Capital Dispatch.
According to the complaint, Kuchenbecker Excavating Inc. and H&S Farms-Livestock LLC, operated by Kenneth Kuchenbecker and his daughter, Heather Smidt, and another defendant, Steve Robinson, are accused of using a company called Golden Opportunities International to bring in H-2A workers to the town of Rake, IA, to work on a livestock operation even though the lawsuit claims the companies had no livestock and were strictly trucking companies. Kuchenbecker Excavating and H&S Farms also both operatedout of the same location and shared workers.
Farmworker Justice and Iowa Legal Aid allege the Kuchenbecker businesses “have fraudulently passed themselves off as agricultural enterprises, although in reality they operate exclusively as trucking companies.”
The H-2A guest-worker program allows agricultural employers to bring in temporary workers exclusively for agricultural work. They are not allowed to perform non-agricultural jobs. Heavy machinery jobs, for instance, fall under the H-2B program.
The H-2A positions also have lower pay scales than H-2B positions. The prevailing wages for H-2A workers in livestock positions over the past three years have run from $15.37 an hour to $17.54 an hour. An H-2B trucking position in the Iowa area over the past couple of years pays $24.12 an hour to $25.30 an hour. Essentially, the lawsuit claims the Kuchenbecker businesses paid Hanekom significantly less than the prevailing wages paid to truckers.
The lawsuit alleged the Kuchenbecker business brought in more than 40 South African H-2A guest workers going back to 2018 who left the jobs before the end of their contract because they were misled about the work they would be performing. The companies also allegedly filed two separate job orders on the U.S. Department of Labor H-2A application to keep the agricultural workers on a year-round basis driving semi-trucks for the companies.
The separate H-2A orders allowed Kuchenbecker businesses to employ Hanekom over five different H-2A job orders from July 2021 through August 2023. Those order requests called for seasonal employees for Kuchenbecker Excavating to spread chicken manure on farm fields as well as load and unload chicken manure. The labor request for H&S Farms-Livestock LLC stated seasonal workers would use skid loaders to clean manure from cattle pens and drive semi-trucks to transport feed products and manure.
Golden Opportunities International LLC acted as a third-party agent to connect employers with potential H-2A workers. The lawsuit alleged Golden Opportunities knew the “true nature of the work performed” but collaborated with Kuchenbecker and Smidt because Golden Opportunities profits from each H-2A worker the company recruits. The lawsuit claims Golden Opportunities should have known there were fraudulent representations by the Kuchenbecker companies because of the high turnover at the businesses.
Rather than working on farms, the lawsuit claims Hanekom found himself driving long distances hauling construction materials and spending most of his work nights in hotels rather than employer-provided housing as the law requires for H-2A workers. That also forced Hanekom to pay for his meals and was never reimbursed. The law requires H-2A employers to provide free meals to guest workers.
Hanekom worked the same kind of job regardless of whether he was under contract for Kuchenbecker Excavating or H&S Farms. Hanekom claims regardless of which company he was working for he never encountered any cattle or livestock.
The lawsuit claims H&S Farms is simply a front for a non-agricultural, year-round trucking company that brought in H-2A workers under false pretenses.
The lawsuit seeks a ruling stating the trucking companies violated Iowa fraud laws as well as federal racketeering laws. That includes awarding Hanekom for his financial losses and other damages.
DTN did not receive a response from Kuchenbecker Excavating Inc.
Trent Taylor, an attorney for Farmworker Justice, could not be immediately reached for comment. In a comment to Iowa Capital Dispatch, Taylor said the practices alleged in the lawsuit are common within the H-2A program as a way for companies to find cheap labor. There is also lax enforcement and oversight within H-2A.
The H-2A program continues to see a rise in use with 378,513 farm workers provided to employers in FY 2023, according to the Department of Labor. That’s up about 1.8% from fiscal year 2022. Employer use of H-2A workers is up nearly 37% over the past five years.
The H-2A program does allow companies to bring in tractor-trailer truck operators, but those jobs only accounted for about 3,422 positions in FY 2023. — Chris Clayton, DTN ag policy editor
