Special Comment on the Lawsuit Filed Recently Against Burger King

Many of you may have already read coverage of a lawsuit filed this week in Miami against Burger King involving questions around the payment of penny-per-pound funds to farmworkers. If not, here is an example of the coverage.

It’s hard to figure out where Florida Legal Services could possibly be coming from with this lawsuit. But we do know this, it’s not coming from any basis in fact.

Their sole claim is that the money accumulated during the time the growers refused to participate in the penny-per-pound program was never paid to workers.

The problem with that claim is that it is dead wrong, and demonstrably dead wrong.

Easily verifiable

The money was paid to workers as a line item bonus this past season, the very first season after the growers agreed to participate in the penny-per-pound program last November.

Verite, the independent third-party monitoring the agreements this past season, can verify that. All the attorneys and accountants of the major fast-food companies that paid the money to the growers can verify that. All the attorneys and accountants of the tomato growers that passed the money on to the workers can verify that. And thousands of farmworkers who received the bonus payments can verify that.

And here, below, with your own eyes, you can verify that:

Above, a receipt from a Pacific worker from the last week of April of this year shows, in clearly labeled, separate line items, the bonuses paid from the Subway and McDonald’s funds (labeled “Subway’s FFP” and “McDonald’s FFP”) to supplement the regular penny-per-pound payment for current purchases, labeled “Fair Food Payt.”

And, what’s more, Florida Legal Services was informed of that reality several months before it nonetheless decided to file the suit. Twice. From a letter to Mr. Schell, from the CIW’s attorney Steve Hitov, from May 9th, 2011:

“… As you know, during the current tomato season the FTGE and its members had a change of heart and agreed to participate in the CIW’s Fair Food Program. Implementation of the Fair Food Premium bonus system is part of the agreement with the FTGE and its members. As a result, Six L’s and Pacific again, and other tomato growers for the first time, have agreed to offer a bonus to qualifying workers. All of the money that has or would have been paid as a Fair Food Premium by participating purchasers since signing their agreements with the CIW (except for that from Yum Brands) is being paid to growers to fund the new bonus system. None of that money is being retained by any of the participating purchasers, including Yum Brands.” (emphasis added)

And again, in a second letter, from May 26, 2011:

“… I am pleased that my last letter provided you with more insight into the operation of the Fair Food Program, but your most recent letter suggests that your understanding remains incomplete. Perhaps that is because you continue to operate from faulty factual premises, so I will try to address some of those in this response…

… once the FTGE had its change of heart, those amounts [the penny-per-pound funds accumulated during the period the growers refused to participate], in addition to the amounts for current purchases, began to be paid out to current workers pursuant to a formula contained in the Fair Food agreements.” (emphasis added)

So why would Florida Legal Services choose to file a high-profile lawsuit pitting farmworker against farmworker, complete with a press release and an aggressive media campaign, when their only claim is so clearly wrong? We don’t know.

Long opposed to the Campaign for Fair Food

What we do know is that Florida Legal Services has, for many years, opposed and belittled the Campaign for Fair Food. Florida Legal Services attorneys are on record since the days of the Taco Bell boycott criticizing the campaign and its approach to social change. From intentionally diminishing the impact of the Taco Bell victory to complaining that the campaign doesn’t involve enough lawyers in its work (a perhaps telling criticism, that), Florida Legal Services has actively sought to diminish, and even undermine, the work and the advances of the Campaign for Fair Food.

On the insignificance of the Taco Bell boycott victory (2005):

“… That figure pales in comparison with the 1.5 billion tomatoes — almost half of which got funneled to retail and grocery stores — sold in 2004, said Rob Williams, the executive director of the Farmworker Justice Project. The nonprofit advocacy group is under Florida Legal Services’ wing.

‘Taco Bell doesn’t seem to be a big part of the tomato industry, much less an industry leader,’ said Williams, who has worked on farmworker issues three decades, including more than a dozen years in Immokalee.

‘Taco Bell doesn’t control things in Immokalee. It seems to me a little bit of a stretch to say the Yum! corporation is responsible because they buy some tomatoes,’ he said. ‘I’m glad they have had a victory but I have difficulty seeing how this leads to much change on the ground for tomato workers in Immokalee.'” read more

In support of the industry-controlled social accountability initiative, Socially Accountable Farm Employers (SAFE), which the CIW opposed (2006):

Greg Schell, managing attorney for the Migrant Farmworker Justice Project in Lake Worth, said SAFE’s requirement that checks go directly from grower to picker, eliminating the crew boss as paymaster, is a big step forward. 
“There are still ways crew leaders can cheat workers, but it reduces the problems by three-fourths or more,” said Schell, who has been working with migrants for nearly 30 years. “SAFE is clearly a reaction to the Coalition’s work, so the Coalition should take credit for it, not trash it.” read more

[SAFE was ultimately discredited when its third-party monitor declared Immokalee slavery free on the same day the victims of the Navarrete slavery operation escaped from the produce truck they were locked in at night. It was later abandoned by the industry following the agreement with the FTGE.]

On the question of whether the CIW includes enough attorneys in its work (2004):

“The CIW is not without its critics, even among those within the farm worker advocacy community. Farm worker attorneys like Gregory Schell have concerns that the Coalition of Immokalee Workers may be independent minded to a fault…

[H]e thinks that greater substantive change could be brought about if the CIW would make a greater effort to supplement its efforts with proven, traditional avenues such as labor attorneys, sympathetic politicians and labor unions like the United Farm Workers. Florida’s right to work law makes it difficult to make progress with unions, and litigation is often a slow and difficult process especially when your only options for representation may be legal services attorneys with a limited budget, but Schell argues that the CIW?s approach may be too dismissive of these valuable resources.” read more

On the true motivation of the CIW (2010):

““Their primary motivation is less improving farmworkers’ lives than generating publicity, power, influence and notoriety for the Coalition,” Schell says.” read more

And these are the tamer comments, the ones that actually made it into the record. We are aware of many, many more attacks on the CIW coming from Mr. Schell, in particular, that were made off the record to reporters and allies over the years and that are far harsher, and far more cynical, than those cited here.

Not entitled to own facts

Of course, Florida Legal Services and its attorneys are entitled to their own opinion.

They are not, however, entitled to their own facts.

So we are confident that, ultimately, despite the temporary platform this lawsuit provides Florida Legal Services to attack the Fair Food Program, the truth will out and that platform will crumble and fall away. Orly Taitz (right) had her day in the limelight with baseless accusations, too, but in the end, the truth prevailed.

Our concern, however, is not with the lawsuit itself or its eventual outcome, but with the confusion it will create in the meantime, much as the birther movement created significant confusion despite its patently false premise.

This is a crucial moment in the Campaign for Fair Food. With nine multi-billion dollar retail food companies and the entire Florida tomato industry now on board, farmworkers in Florida are finally seeing the light of a new day dawning in the fields, with the beginnings of a better wage and a more modern work environment, including new protections, the right to complain without fear of retaliation, and a voice on the job.

It is still early in that new day, however, and the light is still dim. For the wage increase to continue to grow, and the new protections to gain a strong and abiding foothold in the industry, more retail food companies, including the supermarket industry, must also do their part. But the fog of baseless claims contained in Florida Legal Services’ lawsuit could, as surely they must know, provide yet another excuse for those companies to continue their resistance to the Campaign for Fair Food.

And is that, in the end, the real reason Florida Legal Services decided to file the suit? If so, that would be as tragic as it is misguided. as they would be exploiting the hopes of a handful of innocent farmworkers — the workers who agreed to participate in the suit in hopes of winning a bit of much-needed money — in order to advance their own agenda, against the true interests of tens of thousands of farmworkers.

Florida Legal Services is funded to advocate for farmworkers, not to stand in the way of progress simply because they may feel left out of the process. Perhaps they need to take a long look in the mirror, and ask themselves whether stunts like this one might be why they have been left out in the first place.