FJ Blog

Wednesday, 17 August 2016

Farmworkers in the News

In early August, the Partnership for a New American Economy launched a media blitz, releasing reports for each state and the District of Columbia highlighting the positive economic impact of immigrants. The group, convened by former New York City Mayor and billionaire Michael Bloomberg, supports legislation to create a path to citizenship for undocumented immigrants but also emphasizes guestworker programs. The partnership is a coalition of Republican, Democratic and Independent mayors and business groups, including the American Farm Bureau Federation, Western Growers Association, and United Fresh Produce Association.

The reports provide valuable state-level data on the growing immigrant populations, which industries have predominantly immigrant workers, the tax contributions of immigrants and the numbers of immigrant-run and first-generation American run businesses. We generally applaud these efforts but note that the reports only provide the business perspective on immigration.

For example, the reports praise our country for being a nation of immigrants and highlight that immigrants and their children start businesses, often in higher percentages than the general population. However, many of the persons profiled in the reports also call for a “workable” guestworker program for agriculture. But a guestworker program is not an immigration program, in that it requires participants to maintain permanent residence in their countries of origin and generally does not allow them to bring their families. Workers are tied to one industry, typically to a single employer, and lack the freedom and opportunity that true immigrants with lawful permanent residence have. Guestworkers usually have no path to a green card. By design these temporary visa workers and their children will not become American entrepreneurs, homeowners, members of their communities or voters. They are also less able to advocate for better workplaces or join labor unions due to their temporary, non-immigrant status.

Our opposition to guestworker programs is based on our extensive experience assisting workers under the H-2A program and its predecessor and our knowledge of the legacy of the Bracero program and parallel programs in the U.S. and elsewhere. These programs uniformly expose the same flaws, including exploitation of guestworkers’ vulnerability and negative impacts on the wages and working conditions of domestic farmworkers.
Farmworker Justice wholeheartedly agrees that a path to immigration status and citizenship for the 11 million undocumented immigrants in this country would benefit our economy, our communities and all workers. Immigration reform should provide an opportunity for all farmworkers, regardless of their immigration status, to improve their wages and working conditions. Any future visa program for farmworkers should provide workers with lawful permanent residence status and the opportunity to become citizens. In addition to providing solutions to employers’ legitimate needs for an adequate, productive workforce, such programs should incorporate fundamental principles of fairness, economic freedom, and democracy and keep families together.
The reports generated much local media (see, for example, these pieces from the San Antonio Express-News and Bismarck Tribune) and Farmworker Justice responded to the calls for guestworker programs in a few of the articles. You can read Farmworker Justice’s Letter to the Editor in Maine’s Kennebec Journal and Morning Sentinel here.

Slate Article on Wage Theft in Agriculture & Hot Goods Injunctions

Gabriel Thompson wrote an in-depth piece for Slate on wage theft and other labor violations in agriculture, and the Department of Labor’s enforcement tool known as a “hot goods injunction.” Entitled, “Good Crop, Bad Crop,” the subtitle said the U.S. government is “barely using a law designed to stop” wage theft. This provision allows the DOL – after finding wage or child labor violations of the Fair Labor Standards Act – to request a federal court injunction to prevent the products from being shipped or sold. The rationale of Congress in drafting this section of the FLSA in 1938 was that goods produced in violation of the wage laws would “taint” the channels of interstate commerce and undermine above-board law-abiding employers. It is a powerful tool that Farmworker Justice has called on DOL to use more frequently. If the court grants the injunction, the obstacle to business often will persuade the parties to resolve the case promptly so that the cheated workers receive their pay. If an employer can draw out the process of a DOL investigation, it can be difficult tracking down workers to deliver their lost wages. Additionally, if DOL can resolve cases promptly, it can help more workers with its limited resources: over a four-year stretch, DOL was only able to investigate 1% of the nation’s farms.

The article notes that in the late 1980s, the DOL was very effective at using this provision of the law to strategically reform sweatshops in greater Los Angeles.

Unfortunately, many agricultural employers seem to feel that they can break the law with impunity. Numerous surveys of farmworkers find that a majority have experienced some form of wage theft and between 2010 and 2013, nearly 70 percent of DOL inspections found labor law violations. Thompson attributes this, in part, to the fact that the hot goods provision was utilized just 22 times in the last decade. This reluctance may stem from strong pushback that DOL received from growers and some Democratic and Republican politicians after it obtained large wage settlements after threatening to seek hot goods injunctions against a few Oregon berry growers in 2012. The growers successfully sued the DOL to cancel the settlements, claiming that they were forced to settle under “economic duress,” and the case was abandoned by DOL who could no longer locate all of the farmworkers who worked there, many of whom were migrants.
Farmworker Justice President Bruce Goldstein was quoted in the piece, saying that “there is just rampant illegality in agriculture and workers usually feel that it isn’t worth challenging the violations, or speaking up, because of the risk of being retaliated against.” We encourage you to read the entire article and we urge DOL to increase its use of the powerful hot goods injunctions in agriculture.

Guilty Verdict and Pleas in Federal Case Over H-2A Kickback Scheme

Farmworker Justice is pleased that the Department​s​ of​ Justice,​ Labor​, State​ and Homeland Security collaborated in the investigation and successful criminal prosecution of Sandra Lee Bart for visa fraud in the H-2A temporary agricultural guestworker program. Bart was found guilty in a conspiracy to extract illegal kickbacks from H-2A guestworkers after she and a partner set up a company that was able to use the H-2A program to access workers from the Dominican Republic. They then found growers that were willing to use their services as a labor contractor. At least one of the growers claims to have not known the full extent of the scheme – whereby workers had to cover their own travel costs and even reimburse the grower when the H-2A wage rate increased. Nonetheless, the grower pled guilty to conspiracy to commit fraud.

The protections in the H-2A program are in place to prevent this kind of egregious abuse of guestworkers, but require aggressive enforcement. This case further shows the need for more resources so that DOL can investigate potential H-2A violations.

DOL Requests Preliminary Injunction Against Grower Over Transportation Safety

The Department of Labor is seeking to hold a California grower, Valley Garlic, responsible for its farm labor contractor's failure to legally and safely transport farmworkers, which resulted in a tragic crash and the death of four farmworkers. The lawsuit filed by DOL states that the labor contractor is required by the contract between the parties to transport the farmworkers in compliance with federal and state law, but the labor contractor failed to do so. Even now, said DOL, Valley Garlic has taken no steps to ensure that the farmworkers are safely transported. The Department has requested that a federal court issue a preliminary injunction, ordering Valley Garlic to ensure that its farmworkers are transported safely. We applaud DOL's efforts to hold the grower jointly responsible for transporting farmworkers along with the labor contractor as the grower is in the best position to control the working arrangements and conditions on the farm.

Heat Stress Risk to Farmworkers: Solutions

Modern Farmer re-posted an article from last summer that discussed heat stress and farmworkers. Already one of the most dangerous jobs in the country, every summer farmworkers face the added danger of triple-digit temperatures. Almost every year farmworkers die from preventable heat-related illness. It is critically important that farmworkers be offered water, rest, and shade when temperatures rise.

Unfortunately, only California and Washington have regulations requiring that shade be provided to workers. Furthermore, many farmworkers who are paid piece-rate wages feel pressure to harvest as much as possible to maximize their earnings and not take breaks, as they rarely receive paid breaks. OSHA launched an annual awareness campaign about heat stress for outdoor workers beginning in 2011, but ultimately regulations on shade and breaks are necessary to complement OSHA Field Sanitation, which requires cool, potable drinking water. Farmworker Justice and allies will continue to press OSHA to improve its safety standard. We appreciate the article in Modern Farmer.

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by Matt Clark
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Thursday, 11 August 2016

Since their inception, community and migrant health centers have proven to be a vital access point to health care for farmworkers and their families. The Migrant Health Act of 1962 and Economic Opportunity Act of 1964 set in motion the network of locally driven, federally supported health centers that exist today. By having patient representation on the board of directors and partnering with other local organizations, health centers are able to evolve to meet the needs of farmworkers. As a result, health centers are often the most viable, affordable, and culturally competent providers of primary care for farmworkers.

Farmworkers face a number of barriers to care. In focus groups conducted by Farmworker Justice last year, many workers and promotores de salud discussed barriers such as transportation, language access (including availability and quality of interpretation services), cost, and clinic operating hours. They are also a highly mobile population who may need care coordination across multiple states.

Migrant health centers work to mitigate these challenges by performing enabling services such as outreach, translation, and case management. With farmworkers on their boards of directors, they are able to institute policies to respond to the needs of the community. For example, in recognition of the transportation barriers in rural communities, many migrant health centers have mobile clinics at farmworker labor camps, with some even arranging transportation to the clinic. Additionally, because most farmworkers lack health insurance and their average wages are near the federal poverty line, health centers offer care on a sliding fee scale.

In response to an FJ needs assessment survey last year, almost universally, workers, promotores de salud and community organizations cited the local health center as a critical source of primary care for farmworkers and their families when asked about health care access in their communities. Promotores reported that the health centers were very engaged with getting information and educational materials out in the community. Workers found the providers to be compassionate. However, according to data from the Bureau of Primary Health Care, in 2014, community and migrant health centers only served approximately 20% of the nation’s farmworkers and their family members.

To increase farmworker utilization of health center services, FJ participates in the AgWorker Access 2020 Campaign, led by the National Association of Community Health Centers and the National Center for Farmworker Health. The goal of the initiative is for health centers to serve 2 million farmworkers and their families by 2020. FJ provides training and technical assistance to health centers to help them address the factors that affect farmworkers’ access to health services. FJ also leverages partnerships with community-based farmworker organizations, legal services providers, Migrant and Seasonal Head Start, and other farmworker-serving organizations to strengthen relationships between the health center and the community it serves. 

FJ is proud to celebrate Health Center Week and is committed to working with health centers to continue their strong tradition of providing health care in farmworker communities.
 

by Matt Clark
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Wednesday, 03 August 2016

Divide Over Immigration Policy Grows Between the Two Political Parties Making Reform in 2017 Unlikely

An article in Politico highlights the stark divide over immigration policy between the two main political parties this election cycle, indicating that a way forward for immigration reform in 2017 is unlikely. Politico’s Seung Min Kim notes that not everyone in the Republican Party is in alignment with the harsh anti-immigrant rhetoric, but the advocates for building a wall and scapegoating immigrants are dominant. This political polarization exists, despite recent polling showing that 84% of US adults favor creating a path to citizenship for undocumented immigrants who meet a series of requirements. Our analysis of the two major parties’ platforms on immigration, labor and other issues affecting farmworkers is below.

The Democratic National Committee 2016 party platform calls for immigration reform that includes a path to citizenship for undocumented immigrants. The platform commits to efforts to repeal the 3-year and 10-year and permanent bars to adjustment of status for undocumented immigrants, reform to the detention and deportation system, among other recommendations. It also promises to defend President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) initiative, and implement the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expanded DACA guidance.

The Democratic platform calls for an end to raids and roundups of children and families and increased due process for children and families fleeing violence in Central America. However, the platform only states that Temporary Protected Status (TPS) should be considered for, not necessarily granted to, these refugees. Farmworker Justice is disappointed that some political leaders in both parties fail to support TPS for the women and children fleeing violence from Central American countries and urges this Administration or the next to take action. Locking up families and deporting refugee families is inhumane and has not and will not deter people from migrating who are desperate to find safety. Many of these youth will end up in farm work and we hope that they will be provided the limited security that TPS offers.

The Democratic platform does not discuss guestworker programs. It does, however, include support for “an affirmative process for workers to report labor violations and to request deferred action.” This protection against deportation for victims of labor abuses is a priority for Farmworker Justice and we are very pleased to see it in the Democratic Party platform. We have been working with other nonprofits and labor unions to press the current administration to provide a clear process for workers engaged in enforcing their labor or civil rights to apply for and receive deferred action.

The Republican Party 2016 Platform begins by distinguishing between legal immigrant workers, who it acknowledges make vital contributions to American life, and undocumented immigrants. The platform goes on to state that the party opposes “any form of amnesty” for undocumented immigrants. It characterizes as “unlawful amnesties” the DACA initiative of 2012 and its proposed 2014 expansion, as well as DAPA. It states that all three programs “must be immediately rescinded by a Republican president.” In other words, the platform calls on a Republican President to halt both the 2014 programs that have not gone into effect and to end the current DACA program. As of March 31 of this year, 728,285 initial DACA applications had been approved for Dreamers who have received a temporary reprieve from deportation and work authorization, which has allowed many recipients to attend school and vocational programs, work, and obtain driver’s licenses. Ending the program would be harsh, counterproductive and contrary to our nation’s values.

The GOP platform also emphasizes immigration enforcement, restriction of immigration, building a wall along the Mexico-US border, reducing the number of immigrants granted lawful permanent residence (greencards) per year, blocking sanctuary cities and stopping states from providing driver’s licenses to undocumented immigrants. The platform also recommends limiting the refugee and asylum system to “cases of political, ethnic or religious persecution,” and not admitting refugees from countries “whose homelands have been the breeding grounds for terrorism.” In a section of the platform titled, “Confronting the Dangers,” the platform calls for reinstating the National Security Entry-Exit Registration System (NSEERS) also known as “special registration,” a program initiated in 2002, which required men over the age of 16 from a list of predominantly Muslim countries who entered the US on certain types of visas to register with the US government and submit to interrogation.

Regarding guestworker programs, the platform states, “In light of both current needs and historic practice, we urge the reform of our guest worker programs to eliminate fraud, improve efficiency and ensure they serve the national interest.”

The labor sections of the two platforms differ significantly as well. The Republican platform criticizes the National Labor Relations Board’s actions, particularly the efforts to hold corporations accountable for their franchisees, supports “right-to-work” laws, and calls for a national “right-to-work” law which would impede labor union organizing in this country. The platform states that minimum wage laws should be handled at the local level.
The Democratic platform calls for strengthening laws that enable workers to organize and form unions, opposes “right-to-work” laws, calls for paid family leave and paid sick leave laws; and recommends raising the minimum wage to $15.00/hr and indexing it.

Finally, the agricultural communities section of the Democratic platform acknowledges the importance of the Environmental Protection Agency’s Worker Protection Standard, and calls for “stronger agricultural worker protections including regulation of work hours, elimination of child labor, ensuring adequate housing for migrant workers and sanitary facilities in the field.” The Republican section of the platform on agriculture only discusses the contributions of growers and producers and does not mention farmworkers.

Congressional Action on Occupational Safety of Farmworkers

Congress did not accomplish much before it went on its seven-week recess. However, both houses of Congress did pass separate versions of bills funding the Department of the Interior, the Environmental Protection Agency (EPA), the Indian Health Service, the Forest Service, and other agencies (FY2017 Interior and Environment Appropriations bill). The House version is full of toxic “riders” that would limit or prohibit these agencies from spending any funds to perform important functions. One rider would block a provision of the EPA’s new Worker Protection Standard (WPS) that would allow farmworkers to assign a “designated representative” to access information about pesticides to which the worker had been exposed.

After more than 20 years, the EPA recently revised the WPS to better protect child and adult farmworkers, and provide them with the information and tools they need to prevent pesticide exposure in the workplace. The improved provisions are modest and much more needs to be done to protect farmworkers and their communities from pesticide exposure. The designated representative is one aspect of the new WPS, and it is imperative that this hard-fought win remains fully intact. For more information on designated representatives, see this issue brief.

Representative Raul Grijalva (D-AZ) championed an amendment to strike the rider from the House bill. Unfortunately, the amendment did not pass and the harmful WPS rider remained in the bill. Farmworker Justice worked with the United Farm Workers, Earthjustice, and other advocates to kill a separate amendment that would have left it up to states to regulate designated representatives.

The White House has issued a veto threat on the appropriations bill, specifically citing the designated representative rider, among others, as unacceptable. The Senate’s Interior and Environment Appropriations bill does not contain a policy rider affecting the WPS.

The next step in the process would be a Conference Committee of the House and Senate to reconcile their bills and then put the final version up for another vote in both houses. However, that may not happen. With only four weeks left in the legislative session before the 2017 fiscal year begins, Congress will likely pass a continuation of last year’s funding bill that does not contain the harmful WPS rider. Such a “continuing resolution” will likely last just long enough to fund the Federal Government through the elections when the funding debate will resume. Therefore, this rider or other attacks on the WPS are likely to come up again soon and we will continue to defend against them.

The Department of Justice Requested the Supreme Court to Re-hear DAPA/DACA Case

On Monday, July 18, the U.S. Department of Justice asked the Supreme Court for a re-hearing of United States v. Texas. The case, as you know, resulted in a 4-4 tie, affirming the lower court decisions and keeping in place the injunction against DAPA and expanded DACA. Acting Solicitor General Ian Gershengorn requested the re-hearing in the hopes that once there is a new Justice confirmed to the Court, the full nine-Justice Court will issue a favorable decision in the case. Farmworker Justice is pleased that the Federal Government is pursuing a re-hearing. More than 700,000 farmworkers and their family members would have been eligible to apply under these programs, which would grant a temporary reprieve from deportation and temporary work authorization.

Familias Unidas Will Have Union Vote at Washington State Berry Grower

A long running labor dispute in Washington State between farmworkers seeking to be represented by Familias Unidas por la Justicia (Families United for Justice) at a large berry-growing operation, Sakuma Brothers Farms in Washington State, may be nearing an end. The two sides have met to discuss the details of holding a union election and the company has vowed to sit down with the workers if they choose the union.
Separately, Columbia Legal Services was awarded the full $251,699 in attorney’s fees and costs requested for representing Sakuma farmworkers in a class action lawsuit over wage and hour violations that reached the Washington Supreme Court. Pay violations were settled out of court, with 408 workers receiving $500,000, while the Supreme Court ordered back pay to cover 10-minute rest breaks for piece-rate workers. Farmworker Justice submitted an amicus curiae brief in the case.

The H-2A Program Continues Expansion & Growers Seek to Reduce Government Oversight

The use of the H-2A guestworker program continues to rise. According to DOL raw data for the first 3 quarters of FY2016, the Department of Labor has certified employers for 133,739 positions. The total positions certified for all of FY2015 was around 140,000 positions, so this year’s numbers are certain to top last years’ numbers. Despite their access to an unlimited number of H-2A guestworkers, growers’ associations are ramping up pressure on the federal agencies to make it easier and cheaper for growers and labor contractors to use the program. Farmworker Justice and the United Farm Workers sent a letter to the leadership of the Department of Labor and the Department of Homeland Security to stress the need for stringent enforcement of H-2A program rules, given the extensive abuse in the H-2A program of both domestic farmworkes and H-2A guestworkers.

H-2A Wage Rate Manipulation Efforts Apparently Defeated

We received the good news that Washington State’s Employment and Security Department announced that it will survey workers as part of this year’s wages and prevailing practice survey used to set allowable prevailing wages, piece rates and job terms in the H-2A program. The decision came after WAFLA (the growers’ association that brings in large numbers of H-2A workers for employers) fraudulently influenced last year’s Washington State wages and prevailing practices survey. Interviewing workers will hopefully reduce the employer bias in the surveys. Congratulations to Columbia Legal Services and the Northwest Justice Project who have been advocating for workers to be surveyed in addition to employers. Farmworker Justice and other allies assisted in this and related efforts. We also applaud the State of Washington’s efforts to conduct regular, proper surveys in the H-2A program. Many states do not conduct such surveys, and instead, rely on biased-surveys produced by growers’ associations to set the minimum wage rates and other job terms in the H-2A program. We are awaiting an update on the civil and possibly criminal investigations into WAFLA’s conduct.

Note: Farmworker Justice does not support, endorse or oppose political parties or candidates for political office. Farmworker Justice is a 501(c)(3) not-for-profit organization that empowers farmworkers to improve their wages, working conditions, occupational safety, health, immigration policy and access to justice.
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by Megan Horn
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