FJ Blog

Friday, 27 May 2016

Unprecedented growth in the H-2A program continues as does abuse of workers

The Buzzfeed series on the H-2 programs has highlighted abuses of both guestworkers and domestic workers. Recently Buzzfeed published another great piece, “The Pushovers.” The article sharply criticized the Department of Labor (DOL) for continuing to allow employers to use the H-2A program even where they have been found to violate the program terms, including criminal violations. Central to the article is the H-2A farm labor contractor, Vasquez Citrus & Hauling, which was involved in a bus accident that occurred last year, killing six H-2A workers. The contractor was underinsured in violation of the DOL’s regulations and the driver of the bus did not have a proper license to transport workers. Yet, Vasquez Citrus & Hauling was allowed to bring in more workers this year.

We agree with Buzzfeed that DOL must beef up its enforcement and debarment of bad actors. We continue to advocate for increased and improved enforcement by the DOL, and the resources to do so. One example of the kind of enforcement we need to see more of is a recent investigation by DOL of Red Diamond Farms and its owner. The Department’s Wage and Hour Division (WHD) found violations of H-2A program rules protecting U.S. workers, including by offering H-2A workers more hours and failing to offer domestic workers in corresponding employment the proper H-2A wages, free housing and transportation. DOL also found violations of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Workers Protection Act and assessed significant civil money penalties totaling $1,488,800 for the violations due, in part, to the employer’s efforts to impede DOL’s investigation by denying the presence of domestic workers and segregating their payrolls from the H-2A workers. DOL’s increased assessment of civil money penalties is key to deterring future misconduct in agriculture, where there is inadequate enforcement and we often see repeat offenders. DOL also stated that it is seeking to debar the employer from the H-2A program. The employer plans to appeal the findings.

It is noteworthy that the DOL listed the grocery stores that buy Red Diamond Farms’ tomatoes. WHD Administrator David Weil has written and advocated for a supply-chain approach to wage and hour enforcement, a policy that he has been implementing at the agency. In agriculture, the need for this approach is evident with high rates of violations on farms where profit margins are small and there is little control over the market prices of fruits and vegetables. Supply chain projects such as the Equitable Food Initiative and the Fair Food Program recognize this dynamic and the power of consumers in efforts to improve conditions on the farm.

In its own defense, the Buzzfeed article notes that DOL states “it has made ‘a serious and sustained effort’ to protect both guest workers and U.S. workers but added that many of those efforts have ‘been under constant attack from powerful industry groups seeking to undermine these protections.’” This is absolutely true. Employer associations that use the H-2 programs are constantly lobbying in Congress and asking their Congressional representatives to write letters to the DOL and meet with senior department staff to discuss “problems with the programs.” In the case of the H-2B program, employer associations have sued the agency repeatedly to strip worker protections from the program. When they have lost, they have gotten Congress to strip protections through the appropriations process.

The most recent set of attacks center around complaints of delays in the processing of H-2 applications. Yet, DOL’s statistics show a timeliness rate of 90% for the H-2A program, with many of the delays actually resulting from deficiencies in the applications. While there may be some truth to some claims of delays, many are largely overblown and must be placed in the broader context of growers’ longstanding demands to undermine the DOL’s much-needed oversight of the H-2A program, where abuse of US and temporary foreign workers is extensive. DOL plays the critically important role of ensuring that employers are recruiting domestic workers at market wages and working conditions.

Despite their complaints about the H-2A program’s costs and bureaucracy, employers reap the benefits of employing these vulnerable workers. U.S. workers often are unwelcome at H-2A employers because they have the freedom to switch jobs and are more likely to challenge unfair or illegal conduct or join a union. For more information, read our factsheet on the H-2A program.

Two Atlanta Journal-Constitution articles provide an example of the media and grower attacks DOL faces. The first article provided a very one-sided critique of DOL’s processing of H-2A applications. In the second article, “Expecting labor help, South Georgia farmers get inspections instead” (May 10) , the author made serious allegations without any evidence that the DOL had investigated farms in retaliation for Georgia growers’ complaints about processing delays in the H-2A agricultural guestworker program. The notion that the slow-moving Federal Labor Department could (or would, see Buzzfeed article above) respond in one week to Georgia growers’ complaints published the previous week is also ludicrous. It may make headlines to demonize federal civil servants who simply seek to enforce the minimum wage and other basic labor protections that are in longstanding laws, but it’s offensive and inappropriate. We and others who assist farmworkers know that violations of the minimum wage and other basic labor protections that do apply to farmworkers are very common.

Despite the H-2A program’s rapid growth, Congress has not increased the DOL’s resources to administer the program and fulfill its obligations to prevent and remedy labor violations. In fact, the Department’s budget for processing applications for labor certification has decreased since 2012. While employers must pay fees to participate in the H-2A program, DOL is not able to keep those fees. The President's FY2017 budget contained recommendations to Congress to allow DOL to retain the H-2A fees, and to appropriate more money to DOL to administer the program.

Ultimately, of course, we urgently need immigration reform. The hundreds of thousands of currently undocumented farmworkers and their family members should be given the opportunity to apply for legal immigration status and citizenship.

Looking to the future, if this country needs immigrant workers to work our fields and ensure a prosperous agricultural sector, they should be offered the opportunity for permanent immigration status and citizenship, and not be limited to a restricted guestworker status. Farmworkers deserve not only to have labor rights that are effectively enforced but also fundamental economic and democratic freedoms.

Victory for blueberry workers in California!

Workers at a blueberry farm, Klein Management Company, in McFarland, California successfully went on strike and voted to unionize, joining the UFW. As detailed in an article by David Bacon, the workers went on strike after their piece rates were lowered. Congratulations to them!

Overtime bill for farmworkers in California

There has been a lot of media attention on DOL’s recent overtime regulations lifting the threshold for overtime, but farmworkers are excluded from overtime under the Fair Labor Standards Act. There is now legislation in California that seeks to address this discrimination against farmworkers. In case you haven’t seen it, check out this great editorial in The Los Angeles Times calling for overtime pay for farmworkers in California.


by Megan Horn
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Friday, 22 April 2016

Monday, April 18th, 2016 marked a historic day for the immigrants’ rights movement, when thousands of advocates nationwide traveled to the Supreme Court to rally in support of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which would grant temporary relief to millions of undocumented parents, and the expansion of the Deferred Action for Childhood Arrivals (expanded DACA) program. Inside the Supreme Court, the justices heard oral arguments in United States vs. Texas, the case that has temporarily suspended the implementation of DAPA and expanded DACA.

The Rally in Front of the Supreme Court of the U.S.

The brisk early morning air quickly warmed up once Kica Matos, the Director of Immigrant Rights and Racial Justice at the Center for Community Change and the MC for the day, took the stage and electrified both the massive crowd and atmosphere with excitement, hope, and perseverance. The steps of the Supreme Court were crowded with immigrant families and advocacy groups from over 26 states who filled the air with passionate chants, cheers, and music to send a clear message to the Court – treat our families with the respect and dignity we deserve. Read one attendee’s New York Times Op-ed titled, What I Will Do When I Get My Papers.

The powerful rally was fueled and propelled by inspirational speeches, heart-wrenching stories, and powerful music that symbolized the diversity of the larger movement. Speakers included immigrant and labor rights activists, members of Congress, and most importantly, undocumented youth and parents, who shared personal stories and urged the Supreme Court to vote to keep families together. The collective energy at the rally was at a constant high as fellow advocates met one another and rallied together in solidarity.

Many advocates and affected community members camped outside the Supreme Court the night before so they could attend the oral arguments. An estimated 45 immigrant families attended the oral argument, as did many lawyers from immigrants’ rights organizations.

The Oral Argument in the Supreme Court

In addition to hearing from lawyers for Texas and the Federal Government, the Justices heard from Tom Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund who represents 3 mothers who would be eligible for DAPA and are intervenors in the case. Counsel for the US House of Representatives (controlled by Republicans) was also given time to argue on the side of Texas that the programs should be permanently blocked.

Attorneys who attended the arguments have said that the Solicitor General and MALDEF did a good job defending the legality of the programs and arguing against Texas’s standing (right to sue based on a tangible harm) in the case. Most of the time during oral argument was spent discussing standing. There was also significant legalistic discussion around whether deferred action is a “status” and the meaning of “lawful presence” that highlighted just how confusing and complex immigration law is.

In an apparent dramatic development in the Supreme court, Texas seemed to have shifted its argument away from arguing that the Federal Government lacks authority to grant deferred action to a large number of people. Now it is arguing primarily that the Government doesn’t have authority to offer work authorization. One major problem with this argument is that the regulation that allows people with deferred action to apply for work authorization has been on the books since 1987. In addition, many other classes of people under immigration law receive work authorization under this regulation such as people with Temporary Protected Status or applicants for asylum. Invalidating that regulation would upend the immigration system and affect millions of other immigrants. For more information on the issues discussed during the oral argument, listen to AILA’s webcast or read the American Immigration Council’s blog.

What’s Next

It’s very hard to predict outcome of this case. Justices Ginsburg, Breyer, Sotomayor and Kagan appeared to be squarely on the side of the Federal Government. In one potential outcome, the five or more justices will decide that Texas and the other states lacked standing, the case will be thrown out and the programs would be likely to move forward sometime this summer. Since Justice Scalia passed away, there is another likely scenario, where there will be a 4-4 tie among the justices. In this scenario, the lower court decision suspending the programs would not be overturned and the case would be remanded – or sent back -- to the appellate court and district court for further litigation over the issues, which could last for another year or more. We expect a decision by the end of June. If there is a 4-4 decision, it may be released sooner.

by Megan Horn
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Thursday, 31 March 2016

Today's guest blog is written by Peter O'Driscoll, Executive Director of the Equitable Food Initiative.  The Equitable Food Initiative (EFI) brings together workers, growers and retailers in the effort to produce better fruits and vegetables. As produce farms comply with the EFI Standard—for improved working conditions, pesticide management, and food safety—the entire food system sees benefits, all the way from farm workers to consumers.

There's a reason we still celebrate Farmworker Awareness Week each year. Despite landmark events over the past six decades -- from the broadcast of Edward R. Murrow's "Harvest of Shame" in 1960 through the campaigns of Cesar Chavez's United Farmworkers in the 1970s, the supply chain agreements of the Farm Labor Organizing Committee in the 1980s, the organizing of tomato workers in Immokalee and the more recent success of Oregon farmworkers on documentation and minimum wage -- most consumers just don't pay enough attention to the challenges facing those who harvest our fruits and vegetables.

Across those same decades, the produce industry itself has too often taken workers for granted. Thanks to an abundant labor supply, workers were seen as interchangeable, rather than as skilled and valuable assets. But that perception may well be changing. Enhanced immigration enforcement has significantly tightened the agricultural labor market, raising concerns among growers who can't find the workers they need to harvest their crops.

Meanwhile, as US growers increasingly source from Mexico to provide year-round supply, labor unrest and press accounts of harsh working conditions south of the border have convinced the produce industry that there are major vulnerabilities in its sprawling global supply chains. Many insiders acknowledge that "social compliance" is now as urgent a priority as food safety, an issue that always grabs consumers' attention.

As an unusual collaboration among retail, grower, labor and consumer organizations, the Equitable Food Initiative sees a tremendous opportunity for transformation in the produce industry. We believe that well-trained and fairly compensated workers can be a huge part of the solution to the industry's food safety and labor challenges. Our work with Costco Wholesale, Whole Foods and eight of their produce suppliers is already demonstrating that engaged and motivated workers can verify ongoing compliance with our rigorous standards. This spring, our first certified strawberries will be on Costco shelves with the "Responsibly Grown. Farmworker Assured." ™ label. More product will be available as the season advances, and we hope other retailers will join in supporting their suppliers to achieve EFI certification.

But beyond the assurance of compliance, EFI's experience with growers so far shows that new forms of labor-management collaboration can also create other forms of value. As with any industry, experienced farmworkers know a great deal about the produce they harvest, and can use the problem-solving skills they learn through EFI to explore ways to improve the production process, reduce waste and retain labor in a tight market. As more suppliers get involved, there are also opportunities for sharing best practices: rather than dictating how things should be done, EFI aims to build on the inherent knowledge that workers and their supervisors already bring to their profession. As EFI evolves, we learn and grow through the insight of our stakeholders.

Among our early-adopters is NatureSweet Tomatoes, a San Antonio-based company with multiple facilities in Mexico and Arizona. NatureSweet is "dedicated to increasing the sustainability of the land and the lives of all those surrounding our product." But by investing in the capacity of its workforce, the company also sees a significant competitive opportunity, and talks about a produce industry "ripe for disruption." All the growers we talk to seek to tap the potential of their workforce and promote a change of culture in the industry. EFI is excited to be part of what we see as a positive transformation. And it all starts with an awareness that farmworkers bring tremendous skill and knowledge to their trade. This week should be about helping to spread that awareness.

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