FJ Blog

Wednesday, 25 February 2015

A group of farmworkers is attempting to enforce their rights to paid rest breaks and Farmworker Justice's litigation team has been supporting their efforts. The workers, who picked berries at Sakuma Brothers Farms in Washington, sued to enforce several state and federal employment laws. Those workers have now taken their battle to the Washington Supreme Court, where they seek a ruling that would prevent Washington growers from escaping their legal duty to pay workers for their rest breaks.

Sakuma’s berry pickers (like many farmworkers across the country) are currently paid on a piece-rate basis, meaning that they earn money based on how many berries they pick – typically, a piece-rate worker is paid a certain amount of money for each bucket they fill. Piece rate wages are low, forcing workers to be as quick and efficient as possible to maximize their income.

While Sakuma Brothers does allow its workers to take rest breaks, it admits in court filings that it did not pay its berry pickers separately for their rest breaks. Instead, their pay was calculated by simply multiplying the amount of berries they picked by the piece rate. As a result, farmworkers could either choose to make extra money by working through their rest breaks or to take their rest breaks and receive no pay for the time they spent resting.

Sakuma argues that the piece rate they pay their workers includes pay for rest breaks. Since no Washington court has yet decided the issue, the state’s Supreme Court took the issue on. There, the workers argued that the state’s farmworker rest break law – which gives farmworkers the right to rest breaks “on the employer’s time” – entitles them to separate pay for their rest breaks.

With the help of the National Employment Law Project, Sea Mar Community Health Centers, and Migrant Clinicians’ Network, Farmworker Justice filed an amicus curiae brief with the Court, arguing that unpaid rest breaks are harmful to workers’ health. 

Farmwork is among the most dangerous jobs in the country. The risk for injury continues to get worse throughout the day – the longer a worker has been picking berries, the more likely he or she is to get injured. Scientific studies of rest breaks show that they have a profound impact on injury rates. One short rest break is enough to reduce a worker’s risk of injury to its baseline level. 

As Sakuma admits, piece rate workers will often work through their rest breaks if they are unpaid. Workers feel as though they cannot afford to take an off-the-clock break, so they continue working even though it puts them at risk of injury. 

The Capital Ag Press cited the brief in an article on the lawsuit, noting that the brief makes the argument that workers will forego their rest breaks. What that article fails to mention is the crux of the brief – that in order to ensure that the worker protections in Washington’s rest break laws are meaningful, the court must require growers to pay their piece rate employees separately for their rest breaks. Otherwise, the promise of a paid rest break will mean nothing for Washington’s many piece rate workers.

by David Mauch
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Friday, 20 February 2015

President Obama’s Deferred Action Programs Put on Hold by Court

A very conservative, outspoken federal judge issued a temporary order Monday blocking the Federal Government from implementing the President’s deferred action programs that were announced on November 20, 2014, known as DAPA and expanded DACA. The ruling was not unexpected as the federal judge, Judge Andrew Hanen, has made his views on the President’s policies on immigration known in the past. Unfortunately, the ruling creates uncertainty and fear in affected communities, but at this time is only a temporary roadblock as President Obama’s administration is appealing the order. Many legal scholars believe President Obama’s actions are constitutional and likely to prevail. Farmworker Justice urges people to stay calm and to continue preparing for administrative relief. Read our updated flyer on administrative relief in Spanish and English.

Judge Hanen based the injunction, or order blocking the deferred action programs, on the claim that the Obama Administration had not followed proper procedures in creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expanded Deferred Action for Childhood Arrivals (expanded DACA) program. This finding may be overturned as the programs are a general statement of policy based in prosecutorial discretion and do not require formal rulemaking. The judge has not yet addressed whether the programs violate any law or the Constitution. For a more detailed explanation of why Judge Hanen’s decision is wrong, read Harvard Law School Professor Cass Sunstein’s article in Bloomberg View and University of Chicago Law School Professor Eric Posner’s article in Slate.

Not just anyone can challenge a federal policy in court. Challengers have to meet a certain legal standard, known as standing, which includes a requirement to show that the plaintiff will be harmed by the law. The court in Texas v. US held that of the 26 states challenging the programs, Texas, at least, has “standing,” or the right to sue. A recent lawsuit by the notorious Arizona Sheriff Joe Arpaio challenging the President’s deferred action programs was thrown out of court because Arpaio could not show that the programs would cause him any harm. In the Texas case, Judge Hanen found that the State of Texas will be harmed by the cost of processing drivers’ licenses for deferred action recipients (apparently fees don’t cover the costs). He did not take into account any potential financial benefits to Texas through increased tax revenue and economic stimulation that is likely to result in the granting of work authorization to many of the state’s residents. This holding that Texas has standing to sue could also be overturned on appeal.

Today, the White House announced that it will seek an emergency stay – a request to block the injunction - of the judge’s order, which could speed up the appeals process. The normal process to appeal could take several months or longer. The Justice Department plans to file the stay by Monday at the latest.

Important things to know about the judge’s ruling:

The Obama Administration is likely to ultimately win the court case. 
Farmworker Justice, along with many legal experts, believes that President Obama’s executive actions are a proper exercise of his prosecutorial discretion, are constitutional, and should ultimately prevail. 

Potential DAPA and expanded DACA applicants should continue to collect their documents, save money for application fees and otherwise prepare to apply for deferred action. 
However, there is not currently an application process and they should not pay anyone to apply for them. For now, potential applicants should go to community information sessions or check out online resources to see if they may be eligible.

The original DACA program is still up and running.
The court order only affects the prosecutorial discretion memo by Secretary of Homeland Security Jeh Johnson dated Nov. 20, 2014 that outlines the changes to DACA and the new DAPA program. The original DACA program is not affected. Because the Nov. 20th memo expanded the DACA program and work authorization from 2 to 3 years, it appears that for now, work authorization may only be issued for 2 years. New applicants and renewal applicants should still submit their applications. The eligibility guidelines are available here

The Administration’s new enforcement priorities are still in effect.
The court case does not affect any of the other executive action memos on immigration. In fact, the judge stated that the Administration has the authority to set priorities as to who should be deported. The Department of Homeland Security’s new enforcement memo, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” outlines the Department of Homeland Security’s priorities for deportations. Most undocumented immigrants without criminal convictions or with very minor convictions who did not enter or attempt to enter the US after December 31, 2013, will not be a priority for deportation and are not likely to be arrested or deported by DHS.

Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families. Several hundred thousand farmworkers who labor on our farms and ranches could be eligible for these deferred action programs. The programs are well within the President’s authority. By eliminating the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.

Major Victory in Case of Guestworker Abuse
On a more positive note, a federal jury in Louisiana awarded $14 million to 5 former Indian H-2B guestworkers, who were the victims of labor trafficking, fraud, racketeering and discrimination. Congratulations to the workers, their attorneys and the many other organizations and individuals who have worked hard for years to help bring justice to these workers. The workers are represented by the Southern Poverty Law Center, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute, Crowell & Moring, LLP, Sahn Ward Coschignano & Baker. More than 200 other workers have pending claims against the employer, Signal International, and the immigration lawyer and international labor recruiter that it used.

by Megan Horn
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Wednesday, 11 February 2015

Valentine’s Day is soon upon us. This Saturday many people surprise their loved ones with gifts of jewelry, chocolate, or a valentine card, but the most popular gift is flowers. Over 100 million roses are sold on Valentine’s Day in the US every year.

Included in just about every bouquet is a fern leaf to add a touch of greenery and extra fullness. Ferns pull the green color from the stems up a little higher into the bouquet and provide a nice frame for the brightly colored flowers.

Farmworker Justice works with community-based organizations to serve workers in the commercial ferneries in Florida and, through this work, we’ve developed a special appreciation for the men and women who cut fern leaves. They work in fields covered with a ceiling of shade cloth that keeps the air and ground damp to mimic the natural growing conditions of ferns. The wet conditions put the workers at higher risk for pesticide exposure, as damp clothes transfer more chemical onto the skin. The workers cover their clothes with trash bags in an effort to stay dry, even though the heat can feel suffocating. Many workers have told us of health problems related to pesticide exposure, such as itchy skin rashes and throat irritation, which they experience on a regular basis. The moist growing conditions make a hospitable environment for snakes, and workers have told us that snake bites occur all too often and they commonly fear being bitten.

Each day, the fernery workers bend over with shears and cut leaves one-by-one, being careful to cut them all at the same length. They create bunches of leaves and are paid for the number of bunches they cut, which means their income is dependent on how quickly they work. Most workers earn close to the minimum wage, with no benefits. They’ve told us that bathrooms and drinking water are not always provided. They bring their own water but, on really hot days, they say they can’t drink enough water to stay hydrated. They’ve told us that they feel the symptoms of heat illness, including dizziness, vomiting, and fatigue.

The product resulting from this dangerous and difficult work is a beautiful piece of greenery that adorns valentine bouquets across the country. This Valentine’s Day, Farmworker Justice would like to encourage you to think about the people who cut the flowers and fern leaves that are part of the beautiful bouquets enjoyed this holiday and take action to help fernery and other agricultural workers secure stronger pesticide protections. We are participating in a “Valentine Love for Farmworkers” Thunderclap. Follow this link and send a social justice Valentine to the EPA’s Gina McCarthy urging the agency to end the delay in updating the rules that protect farmworkers from toxic pesticides!

by Chelly Richards
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