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May 24, 2018

Farmworker Justice Update: 05/24/18

Farm Bill Defeated in House, New Vote Possible Next Month  

On May 18, the U.S. House of Representatives voted on and failed to pass the Farm Bill, legislation that sets aside money for farm subsidies, rural development, and environmental conservation programs, as well as nutrition programs. Democrats opposed the bill because it sought to make detrimental changes to the Supplemental Nutrition Assistance Program (SNAP), as well as weaken environmental conservation provisions. In addition to opposition from Democrats, the Farm Bill was also rejected by members of the conservative “Freedom Caucus” of the Republican Party, though for different reasons. The Freedom Caucus had demanded a vote on Rep. Goodlatte’s (R-VA) anti-immigrant, anti-worker immigration bill before voting on the Farm Bill. Although Speaker Ryan had promised a vote on the Goodlatte immigration bill, the vote did not take place. Shortly after the failed Farm Bill vote, House Majority Whip Steve Scalise (R-LA) announced that the House may take a new vote on the Farm Bill in June.

Farmworker Justice opposed the Farm Bill, not just for its provisions on nutrition and environmental issues, but also for its inclusion of a re-authorization of the Pesticide Registration Improvement Act ("PRIA 4") for a period beyond the three-year reauthorization period that was approved by the Senate Ag Committee. The reauthorization period was shortened to three years due to serious concerns about recent actions by the Environmental Protection Agency (EPA) to potentially weaken the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators (CPA) rule. PRIA provides funding to EPA for expedited processing of pesticide approval applications and also sets aside funds to support EPA’s worker protection programs. Rolling back these WPS and CPA rules would thereby undermine the basis for FJ’s support for PRIA re-authorization.

Goodlatte Bill Could Be Voted on Prior to Farm Bill in June

The House may also hold a June vote on Rep. Goodlatte’s immigration bill, the “Securing America’s Future Act,” H.R. 4760. Goodlatte’s bill includes the Agricultural Guestworker Act (AGA), although changes may be made to this section of the bill, as well as other provisions, in order to garner more support in the lead-up to the vote. Farmworker Justice will continue to monitor any changes to the bill and work to oppose this virulently anti-immigrant and anti-worker piece of legislation. The decision by House Republican leadership to bring the Goodlatte bill to a vote was partly a result of the Farm Bill dynamics described above, but also a response to a growing discharge petition proposed by Rep. Denham (R-CA) which would bring four immigration bills, including various potential solutions for DACA recipients, to the floor of the House if leadership does not act. The petition needs 218 signatures to move forward. As of yesterday (May 23), 205 Representatives had already signed it. Pursuant to Congressional rules, however, the earliest possible date for a vote on the bills if the petition is successful would be June 25.

Proposed Changes to the H-2A Program Include Online Portal Controlled by USDA

On May 16, as part of the mark-up of the FY 2019 House Agriculture Appropriations bill, Rep. Newhouse (R-WA) introduced an amendment that would establish a new online platform for the processing and adjudication of H-2A petitions, to be run by the U.S. Department of Agriculture (USDA). Farmworker Justice is concerned about the potential adoption of this amendment in the final FY 2019 appropriations bill for various reasons.  Pursuant to existing statutory authority, the Department of Labor (DOL) has certification authority and the primary responsibility for ensuring the labor market test is met by employers (i.e. that there are no US workers available and that bringing in foreign workers will not adversely affect wages and working conditions). USDA does not have the required expertise regarding administering guestworker programs and has historically viewed growers as their constituents instead of workers.  Additionally, current political appointments and staff at USDA include several former agribusiness lobbyists who worked on the H-2A program from the employer perspective. Furthermore, the amendment language is very vague and could open the door to harmful changes such as limiting government oversight of the application process. Finally, the amendment is one-sided and states that the platform will provide transparency to employers but does not address needed transparency for workers. As mentioned in previous updates, last year the Trump Administration created an inter-agency working group on the H-2A program composed of officials from USDA, DOL, the Department of State, and the Department of Homeland Security (DHS). According to agribusiness representatives, the working group may provide its conclusions soon. 

Government Agencies Highlight Focus on Protecting U.S. Workers in Visa Programs

On May 8, DOL’s Wage and Hour Division announced a new initiative for the states of Florida, Kentucky, North Carolina, and South Carolina which seeks to strengthen employers’ compliance with H-2A and H-2B visa requirements, particularly the requirement that employers recruit U.S. workers before applying for temporary foreign workers. On May 11, the Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) announced a memorandum of understanding (MOU) aimed at eliminating fraud, abuse, and discrimination against U.S. workers by employers hiring foreign visa workers. The agreement is part of the “Protecting U.S. Workers Initiative,” which is focused on protecting U.S. workers from discrimination by employers in favor of foreign visa workers, in  accordance with the “Buy American, Hire American” executive order issued by President Trump last year. The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers.

DOJ Announces Indictment for Fraud and Illegal Fees in H-2A Visa Program

On May 17, the DOJ announced the arrest and indictment of three men in California accused of misleading and charging illegal fees to workers seeking H-2A temporary agricultural visas. Individual workers were charged as much as $3,000 to obtain their H-2A visas and were charged for housing and transportation. The defendants also made false promises to the workers about the duration of their visas. The charges brought against the defendants include visa fraud, mail fraud, conspiracy and fraud in foreign labor contracting. This case is illustrative of the need for greater enforcement of the H-2A program’s current protections as well as why these limited protections are needed to combat fraud and abuse. Any expansion or weakening of the H-2A program, such as the changes proposed in the Goodlatte immigration bill, would be devastating to workers and their ability to obtain justice for abuses under this program. 

Supreme Court Decision on Arbitration Denies Workers’ Day in Court

On May 21, the Supreme Court ruled that employers may impose employment contracts that prevent workers from bringing class action lawsuits on behalf of large groups of workers.  The 5-4 decision means that an employer that violates the labor rights of a group of workers can enforce a contractual provision that forces each affected worker to file an individual request for a private arbitration.  Class action lawsuits for violations of the minimum wage, gender and age discrimination, and employment contracts have been efficient mechanisms for obtaining remedies for systematic abuses that affect many employees. They are especially helpful in cases where each individual’s financial loss is small – as in many farmworker wage cases – and it is too costly to bring an individual case.  Additionally, many immigrants, both documented and undocumented, are reluctant to bring lawsuits due to their status or fear of job loss and retaliation. Such workers often have obtained a remedy because other workers were willing to step forward to bring a lawsuit on behalf of all affected workers.  Farmworker Justice has been counsel in numerous class action lawsuits over the years and is very concerned that this decision will cause widespread harm.  More employers will decide to impose forced arbitration clauses and fewer workers will be able to vindicate violations of their rights, which, in turn, will motivate more employers to violate the law.  Congress should respond by revising the Federal Arbitration Act of 1925 to overturn the Supreme Court’s fundamentally flawed interpretation of that law. 

Update on Farmworker Health and Safety

Recent Reports Detail Negative Impact of Immigration Policies on Children’s Health

Two recently released reports - one by the Center on Budget and Policy Priorities (CBPP) and the other by the Kaiser Family Foundation - detail how the Trump Administration’s immigration policies are having a negative impact on immigrant children’s health and development. In 2016, approximately 18 million children under the age of 18, or about 1 in 4 children in the U.S., lived with at least one immigrant parent. These children are at a higher risk of toxic stress and anxiety directly as a result of the current Administration’s immigration policies. A leaked draft of a not yet proposed rule that is expected to be published soon, known as the “public charge” rule, will likely broaden the list of benefits and assistance that could be considered when determining admission to the U.S. or an immigrant’s adjustment of status to an LPR.  The potential list of benefits include Medicaid, the Children’s Health Insurance Program (CHIP), ACA subsidies, the Women, Infants and Children (WIC) nutrition program, and the Supplemental Nutrition Assistance Program (SNAP), among others. According to the 2013-2014 NAWS, 45% of farmworkers have minor children, with 82% of children covered by government-provided health insurance. Under the potential new rule, the public charge determination could include not only benefits used by the applicant but also benefits used by dependents, including U.S. citizen children. The coverage losses that could result from the rule would in turn contribute to even worse health outcomes for immigrant children.

April 30, 2018

Earlier this month, Unidos community partner Campesinos Sin Fronteras hosted their first screening event at their offices in San Luis, Arizona. With dermatological services generously donated by American Academy of Dermatology member Dr. Shane Hamman and his bilingual assistant, CSF screened 25 farmworker patients for skin cancer. The event marks both the culmination of many months of labor, outreach, and planning for CSF, as well as the start of a series of screenings CSF plans to carry out this year.

CSF is a grassroots community organization serving farmworker with strong ties to a variety of organizations in the Yuma, Somerton, and San Luis communities. CSF faces a number of unique challenges within the framework of the Unidos project: the dearth of specialty care (specifically, dermatological care) services in their community; the binational living and working situations of many farmworkers in the area, which can complicate follow-up; and the fact that CSF is not itself a clinic (which can be both a challenge and a resource at times).

Since joining the Unidos project last May, CSF has made significant strides in identifying potential skin cancer resources and connections within its community by conducting a rigorous situational analysis and needs assessment. Promotores from CSF interviewed farmworkers, skin cancer survivors, and potential local stakeholders, conducted focus groups with farmworkers, and engaged in a community mapping that allowed them to physically plot out where skin cancer resources existed in their community. Among the many connections made are the Yuma Cancer Center, three dermatologists all willing to donate care, and the University of Arizona.

CSF is already planning its next two events. Their extensive media connections and binational radio station, KYMZ 99.9 FM, play a crucial role in their marketing and dissemination of information related to their screening events. For more information on CSF and their Unidos activities, follow them on Facebook or visit their website.

April 27, 2018

Farmworker Justice Update: 04/26/18

H-2A Program Statistics for Second Quarter of FY 2018 Show Continued Expansion

The Office of Foreign Labor Certification recently published statistics on the H-2A program for the second quarter of FY 2018.  Over 80,000 positions were certified during this quarter, bringing the total number of H-2A positions certified to 112,214, an approximately 15% increase over the same period last year. This latest data shows the continuing trend of increased use of the H-2A temporary agricultural worker visa program, in spite of employers’ complaints that the program is unworkable. Last year (FY 2017), over 200,000 positions were certified under the program.

Tobacco Workers: FLOC Expands Boycott of Reynolds

The Farm Labor Organizing Committee, AFL-CIO (FLOC), which represents thousands of farmworkers in North Carolina, announced expansion of its boycott of Reynolds American Inc. (now owned by British American Tobacco)’s VUSE e-cigarette brand.  Seeking Reynolds’ signature on an agreement to ensure farmworkers’ rights to organize and improve their working conditions, FLOC and supporters held over 40 demonstrations around the country this month. For more information, visit the FLOC website.

Farmworker Women Call for Improvement of Protections against Sexual Harassment

In the wake of the #MeToo movement to combat sexual harassment, farmworker women from the Alianza Nacional de Campesinas (National Alliance of Farmworker Women) are calling for the improvement of Title VII protections against discrimination, including sexual harassment. The issue of sexual harassment and gender based violence was one of the main topics discussed at Alianza’s recent national convening held in Washington, D.C. Some of the other priority topics discussed included immigration, labor conditions and pesticides. For more information on Alianza and its work, please visit their website.

Workplace Raid on Tennessee Meat Processing Plant Results in Nearly 100 Arrests

On April 5, Immigration and Customs Enforcement (ICE) agents raided the Southeastern Provision meat-processing plant in Bean Station, Tennessee. During the raid, ICE arrested nearly 100 people, making this the largest workplace raid in a decade. The Southern Poverty Law Center (SPLC) is representing approximately 50 of those arrested, working alongside the Tennessee Immigrant and Refugee Rights Coalition (TIRRC). Many of those detained are parents, and the raid has had a significant impact on this small rural community. The day after the raid, hundreds of children were absent from school. A vigil was held shortly after the raid to show support to the families of those detained, and the community has also raised over sixty thousand dollars for the families. The raid has shown the terrible human impact of immigration enforcement and has caused some conservative voters in this rural area to re-assess their views on immigration policy.

ICE Arrests New York Dairy Worker, NY Governor and Senators Calling for Investigation of Incident

On April 18, ICE agents forcibly arrested a dairy worker in upstate New York in front of his wife and children. The dairy farmer who owns the property witnessed the arrest and demanded that the agents provide a warrant, asking them to leave when they did not. The agents did not leave, however, and when the farmer tried to record what was happening on his mobile phone, an ICE agent smashed his phone and briefly handcuffed him. The Workers’ Center of Central New York is aiding the family of the detained dairy worker. New York Senator Kirsten Gillibrand has called for an investigation into the incident and asked the Office of the Inspector General of the Department of Homeland Security (DHS) to look into what occurred. New York Governor Andrew Cuomo has also denounced the incident. On April 25, Gov. Cuomo sent ICE a “cease and desist” letter threatening to sue the agency for its disregard of the rule of law.

DOJ Reverses Decision to Halt Legal Orientation Program

On April 25, Attorney General Jeff Sessions announced that the Department of Justice (DOJ) is reversing course on its previous decision to halt the Legal Orientation Program (LOP). The program, which was launched in 2003, provides funding to a number of organizations across the country to educate immigrants about their rights. Last year, the program helped approximately 53,000 immigrants in over a dozen states. A 2012 DOJ study found that immigrants who participated in LOP completed their court proceedings more quickly and spent less time in detainment. The decision to halt the program had been criticized by the American Bar Association (ABA) as a way of eviscerating due process rights and eliminating transparency in the immigration system and various senators sent a letter to the DOJ last week asking the agency to restart the program. Sessions stated that the decision to resume the program was made in deference to Congress.

Data Shows Sanctuary Policies Encourage People to Report Crime

A recent article in the Washington Post notes that contrary to the Trump administration’s narrative, sanctuary policies can actually increase public safety by making undocumented residents feel secure enough to cooperate with law enforcement. Research indicates that sanctuary counties have either similar or lower rates of crime than counties without sanctuary policies. A recent study by the article’s author helps to explain why this is the case. When told that local law enforcement might be working together with ICE, participants’ responses showed that they were 60% less likely to a report a crime, 42% less likely to report being a victim of a crime, and 68% percent less likely to participate in public events with a police presence. 42% also said they were less likely to place their children in an after school or day care program.

Recent DACA Court Decision Could Eventually Lead to New Applications

On April 24, a D.C. federal judge was the latest to find the Trump Administration’s decision to rescind the DACA program unlawful. The decision resulted from a lawsuit brought by Princeton University (including a Princeton student who is a DACA recipient), the NAACP and Microsoft. The judge has given the government 90 days to provide better reasoning for its decision to end the program. If the government fails to do so, it must begin to accept and process new and existing DACA applications. Although two previous cases had already ordered DHS to accept renewal applications for current DACA recipients, this recent decision is the only one that may allow new applicants to participate in the program, which could benefit tens of thousands of young Dreamers who are currently unprotected.

Update on Farmworker Health and Safety

Farmworker Justice Sues EPA for Information about Agency’s Decision on Worker Rules

On April 17, Farmworker Justice and Earthjustice filed a lawsuit against the U.S. Environmental Protection Agency (EPA) for its failure to turn over information pursuant to a Freedom of Information Act (FOIA) request. FJ and Earthjustice submitted a FOIA request in December 2017 asking for information on the EPA’s meetings with industry representatives and other materials relevant to the agency’s decision to revise and potentially weaken crucial protections in the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rules. The EPA did not comply with the deadline for responding to the FOIA request and has not provided any of this information. The lawsuit asks that the court order the EPA to provide the documents within 20 business days.

Global Warming Already Having an Impact on Texas Farmworkers

A recent article in Scientific American explores the impacts of global warming on farmworkers’ living and working conditions. Focusing on the Rio Grande Valley in South Texas, the article notes that the increasing heat caused by global warming has already cut into farmworkers’ work hours, resulting in less income. It also exacerbates farmworkers’ already difficult working conditions, making them more susceptible to heat stress and dehydration. This problem is not just prevalent in the fields – workers in packing sheds can also suffer from these effects, especially if the sheds are not air-conditioned, which they rarely are. Furthermore, as detailed by Texas RioGrande Legal Aid’s director of farmworker programs, Daniela Dwyer, farmworkers’ housing conditions also make them vulnerable to global warming’s impact, as they often live in crowded conditions, without air conditioning. Farmworkers may also have limited access to clean running water. These challenges are likely to worsen as global warming increases, making this an important topic for farmworker health.

Remembering Cesar E. Chavez (1927-1993)

April 23 marked the 25th anniversary of the death of Cesar Chavez, who co-founded the United Farm Workers and forever changed the nation.  For more information about him, visit the Cesar Chavez Foundation.
 

Latest News

May 24, 2018

May 24, 2018

For Immediate Release

Farmworker Justice Statement on Cabinet Announcement of H-2A Program “Modernization”

This afternoon, Secretary of Agriculture Perdue, Secretary of Labor Acosta, Secretary of Homeland Security Nielsen, and Secretary of State Pompeo issued a joint statement announcing that their Departments are working in coordination to “streamline, simplify and improve” the H-2A temporary agricultural worker visa program. The announcement does not specify what changes may be made to the H-2A program, nor a timeline for any proposed changes.

Farmworker Justice is concerned that this announcement portends that the Administration will be engaging in rulemaking to eliminate or otherwise reduce the H-2A program’s limited but critically important protections.  Based on the announcement’s one-sided focus of delivering “for American farmers” as well as the current Administration’s ties to agribusiness interests and focus on anti-immigrant, anti-worker and anti-regulatory actions, Farmworker Justice fears the upcoming changes to “simplify” or “streamline” the H-2A program could include changes that would reduce obligations for agricultural employers to effectively recruit U.S. workers, lower farmworkers’ wages and working conditions, and weaken government oversight of the program. 

While agribusiness has engaged in an aggressive campaign to critique the H-2A program’s rules and requirements, these modest requirements were put into place based on lessons learned from past guestworker programs. The protections are intended to ensure that U.S. workers do not face displacement and that the wages and working conditions of U.S. workers aren’t adversely impacted by the ability of employers to bring in unlimited numbers of captive visa workers from abroad.  In fact, the existing protections are inadequate and they need to be strengthened, not weakened. Just last week, the Department of Justice indicted several individuals for committing fraud and abuse under the H-2A program, and there have been various recent cases of violations of the program’s protections, including wage theft, inhumane housing conditions and discrimination against U.S. workers. The statement includes language regarding the need to reinforce “the program’s strong employment and wage protections for the American workforce.” We hope this is a true commitment and not a ploy to mollify the “America first” audience.

Today’s announcement includes no mention or recognition of the farmworkers who work every day to tend and harvest our nation’s abundant food supply. Farmworkers are human beings who deserve to be treated with dignity, not commodities to be imported cheaply or “streamlined” in the service of employers’ bottom lines. Moreover, the announcement fails to recognize the devastation that the Trump administration’s harsh immigration enforcement actions are having on farmworker families and communities. Immigration reform with a path to citizenship is urgently needed, but it must be fair, humane and respectful of farmworkers and their family members.

www.farmworkerjustice.org

April 27, 2018

For Immediate Release— April 9, 2018          

Contact:

Virginia Ruiz, Farmworker Justice director of occupational and environmental health, 202-800-2520 [email protected]

Carrie Apfel, Earthjustice staff attorney, 202-667-4500 ext.4310

Washington, D.C.— Farmworker Justice and Earthjustice filed a lawsuit today to force the Environmental Protection Agency (EPA) to turn over communications between EPA and interest groups related to the anticipated gutting of pesticide safeguards that protect farmworkers, families, and communities from toxic chemicals.

The lawsuit demands the release of documents reflecting communications between EPA and representatives of the agricultural and chemical industries that occurred after the Trump Administration took office, as well as notes from a meeting of EPA’s Office of Pesticide Program’s Federal Advisory Committee that preceded EPA’s decision to revisit crucial protections in the federal Agricultural Worker Protection Standard (WPS) and the Certification of Pesticide Applicators Rule (CPA Rule).

“Scott Pruitt’s EPA has shown time and time again a complete disregard for rules and regulations that we know protect farmworkers and their families. These documents may be key to understanding why EPA suddenly decided to reject safeguards that it took decades to study and approve,” said Virginia Ruiz, director of occupational and environmental health at Farmworker Justice. “The fact is, there is no justification for delaying common-sense measures to prevent pesticide poisonings and deaths.”

Last December, Trump’s EPA signaled it would review recent improvements to the WPS and CPA Rule, particularly updates that prohibit employers from requiring children to work with pesticides, provide farmworkers with better access to information about the pesticides to which they are exposed, and protect untrained workers from direct exposure to pesticides. Farmworker and public health organizations expect EPA to officially propose gutting these safeguards later this year.

Farmworker Justice and Earthjustice submitted a Freedom of Information Act request to EPA for the records in late December, days after EPA announced its intention to revisit these protections. The request went unanswered. Now, these groups are asking the court to order EPA to provide the documents within 20 business days.

“The WPS and CPA Rule are tremendously important safeguards that will protect 2.5 million farmworkers, nearly 1 million pesticide applicators, and countless families from pesticide exposure. Yet EPA is planning to gut them,” said Carrie Apfel, staff attorney for Sustainable Food & Farming Program at Earthjustice. “Farmworkers and their families have a right to know who EPA met with and what was discussed leading up to this terrible decision.”

The updated WPS establishes a minimum age of 18 for most workers who mix, load, and apply pesticides, provides farmworkers the right to request pesticide information via a designated representative, and mandates that pesticide application stops if an untrained worker is likely to be hit by pesticide spray or drift. The revised CPA Rule improves the quality of training materials, and says unless exempted, certified pesticide applicators must be at least 18 years old.

The lawsuit, filed in the U.S. District Court for the Northern District of California, comes less than a month after the same district court ruled EPA had illegally delayed implementation of the CPA Rule last summer.

 

April 27, 2018

Farmworker Justice  March 22, 2018

In a major win for farmworker and health groups, the U.S. District Court for the Northern District of California ruled Wednesday, March 21, 2018 that the Environmental Protection Agency (EPA) and Administrator Scott Pruitt illegally delayed implementation of key pesticide safety rules regarding “restricted-use pesticides” (RUP’s) – the most toxic class of pesticides -- applied by certified pesticide applicators.

Virginia Ruiz of FJ is co-counsel with Earthjustice attorneys.  The lawsuit was filed on behalf of the Farmworker Association of Florida, United Farm Workers, Pineros y Campesinos Unidos del Noroeste (PCUN), California Rural Legal Assistance Foundation and Pesticide Action Network North America.  The case is PCUN v. Pruitt, 17-cv-03434.

The revision by the Obama Administration of the Certification of Pesticide Applicators (CPA) Rule prevents minors from applying restricted-use pesticides and also improves the quality of training materials, and says certified pesticide applicators must be able to read and write. The main purpose of the CPA rule is to protect workers and the public from poisonings, by ensuring that those who handle the most dangerous pesticides are properly trained and certified.

After years of reviews, EPA published the revised CPA Rule in the last days of the Obama Administration.

But the then-incoming Trump Administration quickly delayed the rule, as it placed a mandatory freeze on all regulations coming out of federal agencies. The move prompted health-promotion and farmworker organizations represented by Earthjustice and Farmworker Justice to file suit.

The federal judge, Jeffrey S. White, agreed that there was no valid justification for delaying common sense measures to prevent pesticide poisonings and deaths and that the agency and Pruitt violated the federal Administrative Procedure Act, which concerns federal regulatory actions, including by failing to engage in notice-and-comment rulemaking.

The court declared the original March 6, 2017 effective date of the CPA rule as the effective date, making its ruling effective immediately.  The ruling comes three months after the EPA said it wants to revise crucial parts of the CPA rule (to weaken it) It’s still unclear when the EPA will open the proposed changes for public comments.

According to the EPA, there are about one million certified applicators nationwide. Before delaying implementation, the agency said the revised rule could prevent some 1,000 acute poisonings every year.

Now the EPA must work with state agencies to revise the certification processes for applicators of restricted use pesticides to implement the new safety standards.  The defendants have the right to appeal to the U.S. Court of Appeals.

We continue our advocacy and litigation on other actions by the Trump EPA and Pruitt to weaken pesticide safety standards that prevent pesticide exposure to farmworkers and their children.