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July 11, 2019

Year-Round H-2A Amendment Included in House DHS Appropriations Bill

On June 11, the House Appropriations Committee passed an H-2A year-round rider on the Department of Homeland Security (DHS) appropriations bill for FY 2020, via voice vote. Reps. Newhouse (R-WA) and Cuellar (D-TX) introduced the amendment, which allows H-2A workers to be admitted without regard to whether they provide labor or services that are of a temporary or seasonal nature. Reps. Roybal-Allard (D-CA), DeLauro (D-CT), Torres (D-CA), and Kaptur (D-OH) spoke in opposition to the amendment. FJ strongly opposes both the substance of this amendment and the method by which it was adopted. 

Given the contentiousness of the DHS appropriations bill, as well as the current Congressional schedule, the DHS appropriations bill is unlikely to be voted on by the full House before September. The Senate must also pass its own DHS appropriations bill. Therefore, it is unclear whether there will be a final DHS appropriations bill passed by both chambers by September 30, which is when FY 2019 funding is set to expire (with FY 2020 beginning on October 1, 2019). FJ is currently working alongside our allies in both the labor and immigration movements to ensure this harmful H-2A rider is not included in the final FY 2020 DHS appropriations bill. 

Sen. Paul Reintroduces H-2A Expansion Bill 

Last month, Sen. Rand Paul (R-KY) reintroduced the “Paperwork Reduction for Farmers and H-2A Modernization Act,” S. 1887. A companion bill, H.R. 3319, was introduced in the House by Rep. Kelly (R-MS) the same day. The bill currently has four co-sponsors in the House and no co-sponsors in the Senate. The bill is an updated version of a similarly named H-2A expansion bill that was introduced by Sen. Paul in the previous Congress. While the legislation is framed as a bill that would “streamline” the H-2A application process, it includes provisions that would fundamentally change the program, such as expanding H-2A to a variety of year-round industries, including dairy, equine, and seafood processing. The bill also includes a “safe harbor” provision insulating any employers who use third-party preparers from penalties for errors or omissions in their application. FJ opposes this bill. 

Farmworker Justice Freedom of Information Act Lawsuit

On June 28, Farmworker Justice filed a federal lawsuit against the U.S. Department of Agriculture for failure to comply with its obligation to disclose documents under the Freedom of Information Act (FOIA).  FJ is co-counseling the case, Farmworker Justice v. U.S. Department of Agriculture, with Public Citizen. FJ has been seeking documents regarding the Trump Administration’s interagency task force on the H-2A agricultural guestworker program.  The task force met with agribusiness representatives and apparently recommended changes to the H-2A program regulations. 

Settlement Involving Florida Strawberry Farm that Discriminated against U.S. Workers

Last month, the Department of Justice (DOJ) announced a settlement agreement against H-2A employer Sam Williamson Farms Inc. (SFW), a strawberry farm in Dover, Florida. The DOJ’s investigation found that SFW had discriminated against U.S. workers for its strawberry harvesting, informing its existing U.S. workers that it would hire H-2A workers instead for its following season. SFW eventually hired more than 300 H-2A workers and no U.S. workers. Under the settlement, SFW must pay $60,000 in civil penalties and up to $85,000 in back pay to eligible U.S. workers. The investigation was carried out under the DOJ’s “Protecting U.S. Workers Initiative.” 

Article on Labor Trafficking in Agriculture 

A recent Texas Observer article details the abuse and horrific working and living conditions endured by agricultural workers who are victims of labor trafficking, including many who are in the country on H-2A visas. The article notes that though sex trafficking is a more well-known problem, labor trafficking is also widespread, especially in certain industries such as agriculture. The article highlights the specific vulnerability of H-2A workers, who are bound to an employer who controls their visa, housing and worksites. As stated by Texas RioGrande Legal Aid (TRLA) attorney Stacie Jonas, guestworkers are nervous about doing anything that might make them deportable or make it difficult for them to get another visa again in the future. 

Rep. Roybal-Allard Reintroduces Federal Bill to Protect Children Working in Agriculture 

Last month, Rep. Roybal-Allard (D-CA) introduced the “Children’s Act for Responsible Employment and Farm Safety of 2019” (CARE Act), H.R. 3394, which establishes protections for children working in agriculture. The bill has been introduced in past Congresses. The CARE Act would amend the Fair Labor Standards Act (FLSA) in order to strengthen the provisions relating to child labor. While retaining exemptions for family farms, it would prohibit the employment of children under age fourteen (14). Fourteen (14) and fifteen (15) year-olds could be employed only for certain agriculture jobs, during limited shifts and outside of school hours. The bill also states that workers must be at least eighteen (18) years of age to perform hazardous tasks. Additionally, the bill requires data collection on work-related injuries, illness, and deaths of children under age 18 in agriculture, as well as an annual report by the Secretary of Labor.

New York Passes Landmark Farmworker Legislation 

Last month, the New York state legislature passed legislation that will significantly improve farmworkers’ labor rights. A version of the bill, entitled the “Farmworker Fair Labor Practices Act” had been proposed in the state legislature without achieving passage for over two decades. The final bill, which has been signed by Governor Cuomo, represents a compromise between labor groups and farm employers. The bill provides farmworkers with overtime pay, collective bargaining rights, unemployment insurance and expanded workers’ compensation. The bill, S.6578, states that farmworkers are entitled to form a union and engage in collective bargaining free from retaliation. In addition, a union can be certified as the bargaining representative based on “card check,” i.e., a majority of workers signed dues deduction authorization forms.  Allowing card check as an alternative to holding a formal representation election option can be helpful to reducing companies’ anti-union campaigns. The legislation also enables a union to obtain a decision from an arbitrator on the terms of a collective bargaining agreement if the company and union reach an impasse. This opportunity will reduce companies’ ability to refuse to bargain in good faith for the purpose of avoiding a contract. However, the final bill has language prohibiting strikes, based on farmers’ assertions that their impact could be severe during peak seasons. As noted in previous FJ updates, the state appellate court in New York recently declared that a state labor law excluding farmworkers from the right to organize and collectively bargain violates the state constitution’s guarantee of that right.

The bill also establishes overtime pay for farmworkers over 60 hours as well as the option of either a day of rest each week or receiving overtime pay for the seventh day of work. The original bill called for overtime pay over 40 hours. The 60-hour threshold is still a significant improvement, however, as New York farmworkers previously had no right to overtime pay. Only a handful of states in the country offer overtime pay to farmworkers, despite the fact that farmworkers often work more than 40 hour weeks. This is due to a discriminatory and historical exclusion of farmworkers from federal labor legislation. You can read more about this exclusion and a proposed federal bill to remedy it on the FJ website. FJ’s President Bruce Goldstein testified in support of farmworkers’ rights at a NY State Senate hearing at the request of the bill’s lead sponsor, Senator Jessica Ramos of Queens, NY.  Congratulations to Sen. Ramos, and the many coalition members who fought this struggle, including the Rural and Migrant Ministry, Worker Justice Center of New York, NY ACLU, the Robert F. Kennedy Center for Justice and Human Rights, the NY State AFL-CIO, the Hispanic Federation, and many others.

Update on Farmworker Health and Safety

House Bill Calls for Federal Protections against Heat Stress 

Yesterday (July 10), Reps. Chu (D-CA) and Grijalva (D-AZ) introduced the “Asuncion Valdivia Heat Illness and Fatality Prevention Act,” H.R. 3668. The bill is named after a farmworker who tragically died from heat stress. It calls on the Occupational Safety and Health Administration (OSHA) to issue a federal standard on the prevention of excessive heat in the workplace, including the provision of adequate shade, water and rest breaks, as well as information and training on heat stress prevention and symptoms. Unfortunately, too many employers do not offer reasonable protections against heat stress and many farmworkers are reluctant to speak up about unsafe conditions. Climate change is further exacerbating the problem, as temperatures continue to rise nationwide. FJ supports this bill.

FJ President Bruce Goldstein spoke during a press conference on the bill’s introduction about the importance of these common sense measures for protecting farmworkers. Earlier today, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “From the Fields to the Factories: Preventing Workplace Injury and Death from Excessive Heat,” which can be viewed here. Arturo Rodriguez, former President of the UFW, was one of the witnesses at the hearing and discussed the impact of this occupational risk on farmworkers. As mentioned in previous FJ updates, FJ joined Public Citizen and the UFW, along with a coalition of over 200 individuals and groups, in filing a petition to OSHA last year asking for a federal standard to protect workers from heat stress. OSHA has not yet responded to the petition. There is currently no federal heat standard to provide workers with protections from dangerous heat conditions. 

Senate Bill Seeks to Protect Farmworkers from Smoke Exposure

Last month, Senator Merkley (D-OR), introduced “The Farmworker Smoke Protection Act of 2019,” S. 1815. During wildfires, farmworkers often have to work quickly in smoky conditions to harvest crops and protect them from smoke damage, and many do so without proper respiratory protection. The bill would help ensure that farmworkers are protected from hazardous wildfire smoke by requiring employers to provide N95 or other NIOSH-certified respiratory protection to farmworkers who may be exposed. The use of the equipment would be mandatory when the air quality reaches a dangerous level. The bill also requires training and education materials on how to properly use the equipment to be made available to farmworkers, in a language that they understand. Additionally, the bill directs OSHA to develop and publish an official standard to protect employees affected by exposure to wildfire smoke. FJ supports this bill.

Two Mass Pesticide Exposure Incidents Within Two Weeks in Fresno County  

On June 18, approximately 60 workers were affected by a pesticide exposure incident in Dinuba, California. A pesticide that was being sprayed in a nearby orchard drifted into the vineyard where the workers were. Three of the workers had to be hospitalized and the rest were decontaminated on site by emergency responders. Less than two weeks later, on June 27, approximately 75 workers were exposed to pesticides, also in Fresno County, and also leading to the hospitalization of three people. This second incident also seems to have involved drift. Investigations are still underway for both incidents. 

Article on Valley Fever in Farmworker Communities 

A recent Civil Eats article explores the prevalence of valley fever in California’s farmworker communities. Valley fever is a chronic illness caused by a soil fungus called cocci when it becomes airborne, which causes flu-like symptoms and can be fatal. Cases of the disease increased by 10% in California between 2017 and 2018. New cases are especially concentrated in the San Joaquin valley, where many of the state’s farmworkers live. The causes and impact of the disease are still being studied, but working outside and living in areas with high particle pollution (which is often exacerbated by agricultural practices) seem to increase the risk. African-Americans and Latinos seem to be more likely to have severe symptoms. Additionally, climate change is believed to be expanding the territory where the cocci fungus can be found, which will likely lead to an increase in the number of cases not just in California but in other states as well. 

Fifth Circuit Court of Appeals Hears Arguments in Texas v. US

On July 9, the Fifth Circuit Court of Appeals heard oral arguments in Texas v. US. The panel of judges will decide whether to uphold a lower district court ruling that deemed the ACA unconstitutional after Congress eliminated the tax penalty in 2017. The ACA is being defended in court by 20 states and the District of Columbia, led by California Attorney General Becerra, along with the House of Representatives. If the ACA is struck down, an estimated 20 million people could lose health coverage and many of the health and consumer protections, including pre-existing coverage protections, would no longer be in effect. FJ will share updates on this case as the appeals process continues.

California Expands Medi-Cal Coverage to Undocumented Young Adults

On June 27, Governor Newsom signed California’s 2019-2020 budget. The budget expands Medi-Cal coverage (California’s Medicaid program) to undocumented young adults up to age 26. In 2015, Medi-Cal expanded coverage to undocumented children (0-19 years old). In addition to expanding Medi-Cal coverage, the budget also expands health insurance premium support for individuals and families enrolled in Covered California (California’s health insurance marketplace) and reinstates an individual mandate penalty. More information about the California 2019-2020 budget can be found here.

FJ’s Illustrated Diabetes Brochure for Farmworkers

FJ is excited to share its newest publication for farmworkers, “Life of the Party: Making Healthy Choices with Diabetes” available in English, Spanish, and Haitian Creole on our website. It is a comic style brochure that provides information about how to shop for food and make healthy food choices with diabetes. It encourages community members with diabetes to not hide away from being part of community celebrations. FJ is working with our partners across the country to promote diabetes education and testing among farmworker communities. Contact Alexis Guild at [email protected]org with any questions, feedback, or for more information.

June 07, 2019

Farmworker Justice Update: 06/07/19

Dream and Promise Act Passed in House

On June 4, the U.S. House of Representatives passed the “American Dream and Promise Act of 2019,” H.R. 6, by a vote of 237-187. The bill provides critically needed immigration protections and a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients. Passage of the bill is an important first step towards fixing our broken immigration system. You can read FJ’s press release on the bill’s passage here.

New Bill Proposes Temporary Immigration Status for Year-Round Agricultural Workers

On May 16, Rep. Chris Collins (R-NY) introduced the “Helping Labor Personnel on Farms Act,” H.R. 2801. The bill only has 4 co-sponsors. The “HELP Farms” Act would allow current undocumented agricultural workers in year-round employment, who have worked for their employers for at least two years, to adjust their status to a two-year, non-renewable temporary work permit. Eligible workers include those in year-round agricultural industries, such as dairy, sheepherding, livestock, equines, beekeeping, meat processing and seafood processing. Within two years after enactment, the bill directs the Department of Labor (DOL) to issue regulations under the H-2A program to include work that is done on an annual rather than seasonal basis.

The bill is short-sighted, unrealistic and unfair.  It recognizes that there is an experienced, undocumented agricultural labor force that needs work authorization, but then offers only a limited temporary work permit, with no path to citizenship. The two-year temporary permit is non-renewable, meaning that an employer would lose its experienced farmworkers after this period.  Workers would then have to either return to their homeland or remain in the U.S., once again in undocumented status. Without any assurances of the continued ability to remain in the U.S. many workers would be reluctant to come forward to apply for this temporary status. This most recent H-2A expansion bill highlights the way in which too many politicians and employers view agricultural workers: as disposable inputs. Immigration status should not be a mere tool for conveniently acquiring or disposing of farmworkers. Legislators need to think about the real-life impact of these policies on farmworkers and their families.  

New York Court Rules Farmworker Collective Bargaining Exclusion Unconstitutional

On May 23, the state appellate court in New York declared that a state labor law excluding farmworkers from the right to organize and collectively bargain violates the state constitution’s guarantee of that right to working people.  The decision resulted from a case brought in 2016 by dairy worker Crispin Hernandez, along with the Workers Center of Central New York and the Worker Justice Center of New York, represented by the New York Civil Liberties Union. To their credit, the NY Governor and Attorney General declined to defend the state law in court. However, the New York Farm Bureau intervened to defend the exclusion. A lower court had initially dismissed the workers’ case in 2018, leading to the successful appeal. The Farm Bureau is expected to appeal the recent decision to the state’s highest court, the Court of Appeals.

New York Legislation on Equal Labor Rights for Farmworkers Still Pending

The NY state litigation is particularly timely given that the New York legislature is currently considering passage of the Farmworkers Fair Labor Practices Act, which would codify agricultural workers’ right to organize and collectively bargain, among other important labor rights protections such as the right to overtime pay. As stated in a recent NY Daily News article, if advocates and consumers really care about food policy, they must ensure that those who actually grow our food are treated with the basic dignity they deserve. An upstate New York newspaper recently published a letter to the editor by FJ President Bruce Goldstein, who criticized an editorial that opposed the legislation as being “rushed.” The letter pointed out that farmworkers have been waiting since the 1930s for the labor protections other workers have been granted.

Dairy Workers in Washington Doubly Damaged

A large dairy operation called Mensonides Dairy in Mabton, Washington was sued by its employees for wage theft and then filed for Chapter 11 bankruptcy so that it could reorganize.  The ability of the farmworkers to ever collect their stolen wages is in doubt. The United Farm Workers is assisting the workers. A Yakima Herald article about the case was helpful publicity but mentioned low milk prices for dairy farmers. The paper later published a letter to the editor by FJ’s Bruce Goldstein rejecting the implication that low milk prices might explain wage theft and criticizing the unbalanced discussion of economic issues.  The letter, noting that these abuses arose at dairy farm that belongs to the Darigold system, called for greater corporate responsibility in the dairy supply chain.

DOL Conducting Education Campaign for Agricultural Employers in Southeast U.S.

DOL WHD recently announced that it is engaged in an education and enforcement initiative to boost compliance by the agricultural industry in the Southeastern U.S., including the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. From January 2018 through March 2019, WHD investigators found violations in 90% of the 345 investigations of agricultural employers they concluded. As a result of these investigations, 20 Southeast growers and farm labor contractors have been debarred from the H-2A program.

Human Trafficking Case Involving Mexican Workers in Wisconsin and Georgia

Several recent cases highlight the vulnerability of H-2A guestworkers and the prevalence of abuses in the program. Last month, a federal indictment was filed in a case of human trafficking involving workers in Wisconsin and Georgia. Five people who worked for the labor contracting entities “Garcia & Sons” and “C & D Harvesting,” have been charged for actions including threatening workers, confiscating their passports, and giving them fraudulent resident cards and social security numbers. Some of the workers were at Wisconsin-based Borzynski Farms, which has stated they did not know the workers were being abused and that the farm is no longer working with these labor contractors. Moore Farms in Georgia was also a client, but the farm owner stated he did not believe the contractors were abusing the workers. The application filed for the workers stated that they would be working in Georgia, but they were then transported to Wisconsin. The charges came after a multiyear human trafficking investigation by several law enforcement agencies including the FBI, the DOL Office of Inspector General, Homeland Security Investigations (HSI) and the Racine Police Department. United Migrant Opportunity Services (UMOS) provided emergency assistance and support to the workers.

Georgia H-2A Workers Subject to Terrible Living and Working Conditions

The Southern Poverty Law Center (SPLC) is representing three guestworkers in an administrative complaint against their employer. Two of the workers report being subject to sexual harassment by their employer, a South Georgia contractor, on multiple occasions, with the final incident occurring at gunpoint. The three guestworkers were recruited from Mexico to harvest blueberries, but unbeknownst to them, would also be required to work in tobacco and pine straw harvesting. The employer’s violations against the workers include illegally charging recruitment fees, illegal wage deductions for housing and visa charges, wage theft, dangerous working conditions, inadequate housing conditions, gender discrimination, sexual harassment and retaliatory threats. This case is reflective of the abuse and exploitation guestworkers are too often subjected to by their employers. The three guestworkers seeking legal action want to prevent the contracting company from exploiting other workers in the future.

Recent DOL Enforcement Actions against Agricultural Employers

A recent DOL Wage and Hour Division (WHD) investigation revealed systemic violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) as well as the provisions of the H-2A program by various Arizona labor contractors. As a result, a U.S. District Judge ordered Cargo LLC and Christian Gomez Bueno to pay $48,771 in civil penalties and $26,229 in back wages. The judge also barred Jose Carlos Gomez, who is Gomez Bueno’s father and did business as Union Harvest, from ever again serving as a farm labor contractor. The defendants failed to provide employees with safe transportation, including egregious vehicle safety hazards such as worn tires, missing mirrors, faulty lights, and inoperative horns. They also failed to pay employees all the wages they had earned when due and to maintain accurate records of hours worked, among other violations.

 Another recent investigation involved the DOL’s Occupational Safety and Health Administration (OSHA), which recently cited Duda Farm Fresh Foods Inc. of Florida for exposing employees to workplace safety hazards. Among other violations, OSHA found that the company failed to provide the required respirator fit test and safety training to employees operating ammonia refrigeration systems. The company faces $95,472 in penalties after a worker required medical treatment due to an anhydrous ammonia leak in the farm's packing house. The investigation was done pursuant to an OSHA National Emphasis Program focused on facilities with highly hazardous chemicals.

Update on Farmworker Health and Safety

Idaho Farmworkers Exposed to Toxic Substance

        Over Memorial Day weekend, a group of farmworkers and their families were exposed to a toxic substance, resulting in over 20 people having to receive medical treatment. The specific toxic substance has not yet been determined, but the Idaho State Department of Agriculture is currently investigating the incident. The patients suffered flu-like symptoms and one of them became unconscious. Some of the workers, who had showered and changed after arriving home from work, had less severe symptoms. The workers told investigators that they had not received any training on pesticide safety. As mentioned in the article describing the incident, the recently revised federal Worker Protection Standard (WPS) requires that workers be provided with pesticide safety information, including information about how to limit take-home exposure.

California State Assembly Passes Farmworker Housing Act of 2019

        On May 24, the California State Assembly passed A.B. 1783, a bill intended to address the housing shortage among farmworkers in the state. The bill would streamline the building of farmworker housing on agricultural land. Under the bill, state financial support of farmworker housing will be focused on family-oriented projects and the state of California will be prohibited from funding housing for H-2A workers. To qualify, the farmworker housing must be managed by an approved nonprofit and meet a number of requirements aimed at ensuring it is suitable. Supporters of the legislation include sponsor United Farm Workers, the Center for Farmworker Families, Santa Cruz and San Benito counties, and the city of Salinas. The bill will now be sent to the California State Senate for approval.

Public Water Systems in Some California Farmworker Communities Serve Unsafe Water

 As detailed in a recent article in The New York Times, low-income farmworker families in California’s Central and San Joaquin Valleys’ home tap water systems spew toxic water contaminated by chemical fertilizers, dairy manure, and arsenic, while the crops around them have access to sophisticated irrigation systems. According to data from the California State Water Resource Control Board, more than 300 public water systems expose more than one-million Californians to unsafe drinking water. The majority of affected residents belong to small communities who are unable to support the costs necessary to alleviate the problem. Governor Newsom has proposed a tax on urban water districts and the agriculture industry to redevelop the infrastructure in districts with unsafe water, but the proposition has received significant pushback.

Farmworker Justice Award Reception

Please join us for Farmworker Justice’s Award Reception on June 13, at The Hamilton Hotel in Washington, D.C.  Honorees include Arturo Lopez, Diana Tellefson and Earl Dotter. More event details are available on our website. Your support makes possible our work on labor rights, occupational safety, immigration, health and access to justice.

May 17, 2019

Farmworker Justice Update: 05/17/19

DOL Releases H-2A Second Quarter Data Showing Continued Growth

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently published data on the H-2A temporary agricultural worker visa program for the second quarter of FY 2019. The data shows that approximately 123,000 H-2A positions have been certified so far this fiscal year, a 14% increase over the same period in FY 2018.  In FY 2018, DOL approved a total of approximately 242,000 H-2A jobs.

NCAE Continues Attempts to Decrease Farmworker Wages

On April 30, the National Council of Agricultural Employers (NCAE) sent a letter petitioning the Department of Labor (DOL) to change its methodology for calculating the Adverse Effect Wage Rate (AEWR) for the H-2A program. As noted in previous updates, the NCAE filed a lawsuit earlier this year seeking to reverse the DOL’s implementation of the 2019 AEWRs. The lawsuit, Peri & Sons Farms, Inc. v. Acosta, was dismissed by a U.S. District Court judge in March based on the statute of limitations. On April 18, two weeks before sending the letter to the DOL, the NCAE filed an appeal in the Peri & Sons case. The appellant’s briefs are due next week. FJ is co-counsel for the United Farm Workers (UFW), which intervened in the case.

House Committee Hearings on the Agricultural Economy

The House Committee on Agriculture recently held two hearings on the state of the agricultural economy. One was focused generally on the farm economy, while the other focused specifically on the dairy industry. The hearing witnesses discussed a variety of factors including trade uncertainty and product pricing. Another factor that was highlighted in both hearings was the importance of immigrant labor to the agricultural economy. A few of the representatives present stressed the need to provide an immigration solution for the many undocumented workers who are currently doing agricultural work, such as in the Agricultural Worker Program Act of 2019, which FJ supports. However, some of the witnesses and representatives instead took the opportunity to call for weakening the existing protections in the H-2A temporary agricultural worker visa program, including an expansion to year-round industries such as dairy. As detailed in our fact sheet on the most recent H-2A year-round proposal, FJ opposes expanding the H-2A program to year-round jobs and supports opportunities for immigration status for any farmworkers needed in the future. 

Recent DOL Enforcement Actions against H-2A Employers

The Department of Labor (DOL) recently issued a decision against James Brady Sr. of Lebanon, Kentucky for violations of the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the H-2A visa program.  Brady, a tobacco farmer, paid his U.S. employees less than H-2A workers doing the same work. Among other violations, Brady also failed to provide the H-2A workers with free housing, transportation reimbursement, and three-quarters of the hours guaranteed in their work contracts. Brady was ordered to pay almost $92,000 in back wages as well as a civil money penalty of $115,000.

DOL also recently announced consent findings in a case against Earl Roy Farm of Louisiana LLC, a sweet potato farm based in Hessmer, Lousiana, for violations of the H-2A program’s requirements. Earl Roy Farm similarly paid U.S. workers lower wages than H-2A workers, failed to reimburse H-2A workers for their transportation and failed to provide three-fourths of the guaranteed work hours. Additionally, Earl Roy Farm unlawfully laid off U.S. workers. The company will pay approximately $70,000 in back wages in addition to more than $30,000 in civil money penalties.

Guardian Article on Abuses and Fraud in H-2A Recruitment

A recent article in The Guardian details abuse and fraud in the recruitment of Mexican workers who come to the U.S. on H-2A visas. Even though recruitment fees are illegal under the program, many recruiters charge workers, who do not disclose the fees for fear of losing their visas and/or being blacklisted. Workers who arrive at their jobs already indebted are then vulnerable to labor abuses and trafficking. The article highlights the power imbalance between H-2A workers and their employers, as well as the lack of clarity about who the actual employer is given the prevalence of recruiters and labor contractors.

Civil Eats Article on Farmworkers’ Labor Rights

A recent Civil Eats article details farmworkers’ historic exclusion from labor protections and extremely low unionization rate. It highlights various farmworker unions: the United Farm Workers (UFW), Pineros y Campesinos del Noroeste (PCUN) and the Farm Labor Organizing Committee (FLOC), as well as the work of Familias Unidas por la Justicia and the Rural Migrant Ministry. The article also references the New York Farmworker Fair Labor Practices Act, which would remedy farmworkers’ exclusion from collective bargaining rights, among various other provisions advancing farmworkers’ labor rights. FJ’s President Bruce Goldstein recently testified before the NY State Senate in favor of the bill.  

New Immigration Proposal Introduced by White House

Yesterday (May 16), President Trump announced a new immigration plan focused on increasing the militarization of the border, weakening asylum protections and overhauling the country’s legal immigration system in favor of a “merit” points system. The White House proposal does not specifically address agricultural workers despite the demand by agricultural employers and farmworkers for immigration reform. The proposal has been labeled “dead on arrival” from all sides of the immigration debate. Among many issues, the plan does not offer immigration status or other relief to Dreamers or TPS holders and similarly lacks a solution for the approximately 11 million undocumented individuals currently in the country. If ever enacted, the proposal would be extremely harmful for many reasons, including by preventing the unification of families. The proposal’s emphasis on granting immigration visas to highly educated individuals ignores the reality of who fills essential jobs in our economy.

Update on Farmworker Health and Safety

State Actions on Chlorpyrifos

In the absence of progress at the federal level, several states are taking steps to end the use of the pesticide chlorpyrifos in agriculture.  Last week, the California EPA announced that it was beginning the regulatory process to ban its use in that state, and a bill to take swifter action is pending in the California Senate. On April 30, the New York state legislature passed a bill to ban the pesticide, and the Oregon and Connecticut legislatures are considering similar bills. Hawaii was the first state to pass legislation banning the pesticide last year. As stated by FJ’s Director of Occupational and Environmental Health, Virginia Ruiz: “There’s momentum now, and people and policymakers are becoming better educated about chlorpyrifos.” As noted in previous FJ updates, chlorpyrifos is a highly toxic pesticide that is linked to neurodevelopmental damage in infants and children. EPA banned its residential use in 2000. In 2016, EPA scientists recommended cancelling remaining uses of the pesticide, but in March 2017, the Trump Administration allowed its continued use indefinitely. Last month, the Ninth Circuit Court of Appeals ordered the EPA to issue a final decision regarding chlorpyrifos by July 18, in response to litigation and administrative objections by farmworker and environmental groups, including FJ.   

Midwest Examples Highlight Lack of Pesticide Incident Reporting

A recent Harvest Public Media investigation highlights the lack of adequate state and national records on pesticide exposure incidents, based on information from the departments of agriculture in various Midwestern states including Colorado, Illinois, Iowa, Kansas, Missouri and Nebraska. Among the problems identified is that some departments do not track incidents at all while others do not distinguish between human and other types of exposures. There is also a lack of coordination between state agricultural, health and environmental agencies. At the federal level, as detailed in previous FJ updates, the Environmental Protection Agency (EPA) recently updated the Worker Protection Standard (WPS). However, even with some of the crucial improvements in this regulation, the EPA still has little ability to monitor their implementation and determine how frequently workers are actually exposed. The issue of pesticide drift is of particular concern, as this is one of the most common ways in which individuals can be exposed. The new version of the WPS includes a safety measure, called the “Application Exclusion Zone,” or AEZ, that seeks to address and prevent this risk. Unfortunately, however, the EPA recently announced that it plans to issue a proposed rule to reconsider the AEZ, potentially weakening its scope and impact. We do not yet know the specific contents of the proposed rule. If and when it is published, FJ will work to submit comments that stress the importance of preventing exposures for both workers and bystanders.  

CMS Finalizes 2020 Benefit and Payment Parameter Rule

On April 18, the Centers for Medicare and Medicaid Services (CMS) issued its final 2020 Benefit and Payment Parameter Rule. This rule, issued annually, sets standards for the Affordable Care Act health exchanges including plan benefits, tax credits and cost-sharing as well as consumer outreach/in-person assistance. Among its provisions, the final rule eliminated the requirement that navigators provide post-enrollment assistance and reduced the training requirements for navigators. Navigators will no longer be trained to provide post-enrollment assistance and will only receive general trainings on topics such as the needs of underserved and vulnerable populations. Among the many implications of this final rule, there will be fewer navigators who are properly trained to assist farmworkers and other hard-to-reach/vulnerable populations in health insurance enrollment. There are also concerns that the final rule will reduce affordability for low-income consumers due to changes related to the premium adjustment percentage. More information about the final rule can be found here.

House Votes on Bill that Would Restore Funding for ACA Outreach and Enrollment

Yesterday (May 16), the House of Representatives passed a bill that would restore funding for ACA outreach and enrollment. H.R. 987, the Marketing and Outreach Restoration to Empower (MORE) Health Education Act, will restore funding for outreach and education activities in Federally-Facilitated Exchanges (FFEs). It will also limit funding for outreach activities to ACA-compliant plans, barring outreach funds from being used to promote short-term health plans. Since 2017, there have been significant cuts to funding for ACA outreach and enrollment. The Congressional Budget Office (CBO) estimates that the MORE Act could lead to an additional 500,000 individuals enrolling in coverage. The bill is part of the House’s broader health care legislation to improve financial assistance and strengthen protections under the ACA.

Update on Texas v. U.S. Lawsuit to Stop Implementation of the ACA

The Fifth Circuit Court of Appeals will hold a hearing on Texas v. U.S. in July. A date has not yet been set but oral arguments are expected to take place the week of July 8. California’s Attorney General, Xavier Becerra, is leading a coalition of 21 attorneys general in defense of the constitutionality of the ACA. The Fifth Circuit granted Wisconsin’s request to withdraw from litigation, leaving 18 states, led by Texas, and two individuals as plaintiffs. A press release from Attorney General Becerra's office can be found here.

Please join us at the annual Farmworker Justice Awards Reception in Washington, D.C. on Thursday, June 13, 2019!  

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July 16, 2019

For Immediate Release            

July 16, 2019                       

Contact: Bruce Goldstein, Farmworker Justice

202.293.5420 ext. 304 [email protected]

Trump Department of Labor Proposes Harmful Changes to H-2A Agricultural Guestworker Program

Yesterday, the U.S. Department of Labor announced plans to engage in a sweeping revision of the H-2A agricultural guestworker program.  The proposed changes to the H-2A program regulations would reduce labor protections for U.S. workers and H-2A temporary foreign workers in a variety of ways.

The proposed rule and the accompanying explanation are 489 pages long.  We are reviewing the proposal and will be preparing a substantial analysis and formal comments. 

The proposal would sharply reduce the obligation to recruit U.S. workers.  The rule proposes eliminating the “50% rule,” a key protection for U.S. workers that requires employers to hire qualified U.S. workers through at least the mid-way point of the contract; and replacing it with a requirement to hire U.S. workers only for the first 30 days of a contract, or until the end of the staggered entry of H-2A workers (staggered entry also being a new provision that could make it more difficult for U.S. workers to learn of job opportunities at H-2A employers).  Some U.S. workers would lose job opportunities.

The proposal would shift H-2A program costs from employers onto the backs of H-2A workers, who are predominantly from poor countries.  DOL proposes to end requiring transportation cost reimbursement from the worker’s home in the country of origin to the place of employment, and only require that employers pay for transportation from the US consulate or embassy where the workers obtain their visa, which is often far from their homes.  A 2008 Bush rule made a similar change and the costs shifted to workers at the time was about $4.7 million; a cost that would be much higher today. 

The rule proposes significant, complex changes to the wage rates required under the H-2A program for both U.S. and foreign workers.  The proposal includes changing the methodology for the Adverse Effect Wage Rate (AEWR), resulting in lower wages for many H-2A workers.  For example, the DOL notice apparently is indicating that under the proposed formula in California where the current AEWR is $13.92 per hour, the field workers’ would have been a dollar an hour lower at $12.92.  In Texas, the rate would be $11.53 for field workers, rather than the current $12.23.  Wage decreases would occur in other states, including Florida and New York.  For low-wage farmworkers these are harmful pay cuts that undermine the labor market.

It also includes changing the methodology for the prevailing wage for particular jobs in local areas in a way that makes it difficult to ensure a prevailing wage is even available.

“The Trump Administration’s proposal would make it easier for farmers to bring in temporary foreign workers under substandard wages and working conditions, denying these valuable workers  the economic and democratic freedoms on which this country is based,” said Bruce Goldstein, President of Farmworker Justice.  “The Administration's immigration enforcement and threats against undocumented immigrants are harming farmworker families and undermining the agricultural sector, where a majority of farmworkers are undocumented,” he added.  “The Trump Administration is doing nothing to deal responsibly with the most basic challenge:  the majority of the current farm labor force is undocumented.   Congress should grant undocumented farmworkers and their family members the opportunity for immigration status and a path to citizenship.”

The H-2A temporary foreign agricultural worker program, which originated during World War II, is intended to allow agricultural employers to hire foreign citizens on temporary work visas for temporary or seasonal agricultural work if they can demonstrate a shortage of labor and that the wages and working conditions will not “adversely affect” the wages and working conditions of U.S. workers.   The H-2A program has been growing rapidly recently, from 139,832 jobs in 2015 to over 242,000 in 2018, undermining the argument that the program is too burdensome for employers.

Farmworker Justice is a national advocacy organization for farmworkers and has extensive experience regarding the H-2A program.  Our report, “No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fail U.S. and Foreign Workers” is available on our website.

June 05, 2019

For Immediate Release                                      

Contact: Bruce Goldstein, Farmworker Justice, 202-800-2521

June 5, 2019                                                         

Farmworker Justice Applauds House Passage of the “Dream and Promise Act of 2019”

(Washington, DC)   Farmworker Justice commends the House of Representatives for its passage of the crucial piece of legislation, the “Dream and Promise Act of 2019,” H.R. 6, on June 4. The bill provides common sense and urgently needed immigration protections and a pathway to citizenship for individuals with Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and Deferred Enforced Departure (DED).

Farmworker Justice President Bruce Goldstein stated: “We applaud the House of Representative’s passage of the “Dream and Promise Act of 2019.”  Passage of the Dream and Promise Act bill is an important step toward achieving a greater measure of justice for approximately two million immigrants who contribute immensely to our country, economically and otherwise, including some of those who grow the food that we put on our tables. The need for immigration relief is acute for Dreamers, TPS holders, and DED recipients, particularly given the current Administration’s attempts to eliminate these programs. We urge the Senate to take up this bill to ensure commonsense and fair relief.”  

Farmworker Justice has endorsed this important legislation as one step toward fixing our broken immigration system. Farmworker Justice will continue its efforts to win a path to citizenship for all aspiring Americans, including undocumented farmworkers and their family members.  A majority of farmworkers are undocumented immigrants. 

Farmworker Justice is a national advocacy organization for farmworkers with over thirty-five years of experience serving the farmworker community regarding immigration and labor policy.

May 21, 2019

For Immediate Release                                       Contact: Bruce Goldstein, Farmworker Justice

May 21, 2019                                                          202-800-2521

Farmworker Justice Statement on Mark-up of “Dream” and “Promise” Legislation

(Washington, DC)   Tomorrow (May 22), the House Judiciary Committee is scheduled to mark-up two important pieces of legislation:  H.R. 2820, the “Dream Act of 2019” and H.R. 2821, the “American Promise Act of 2019.” These two bills are based on the “Dream and Promise Act of 2019,” H.R. 6.

Together, they would provide immigration protections and a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients.

Farmworker Justice President Bruce Goldstein stated: “It is imperative that Congress pass legislation securing permanent protections for Dreamers, TPS holders, and DED recipients. By eliminating the constant fear of deportation, this legislation would reduce the stress placed on them and their families and empower them in their workplaces, including our nation’s farms and ranches.”  

Farmworker Justice has endorsed this important legislation as one step toward fixing our broken immigration system. Farmworker Justice will continue its efforts to win a path to citizenship for all aspiring Americans, including undocumented farmworkers and their family members.  A majority of farmworkers are undocumented immigrants. 

Farmworker Justice is a national advocacy organization for farmworkers with over thirty-five years of experience serving the farmworker community regarding immigration and labor policy.

www.farmworkerjustice.org

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For more information, contact Bruce Goldstein at 202-800-2521 or [email protected]