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October 05, 2018

Farmworker Justice Update: 10/04/18

President Signs FY 2019 Appropriations Package, Including CR for Various Pending Bills

On September 28, President Trump signed a spending package for FY 2019, which began October 1. The package includes full-year funding for various programs, such as defense, education, health and labor. It also includes a short-term continuing resolution (CR) lasting through December 7 for other remaining appropriations bills, meaning these remaining bills were simply extended from the previous year. The appropriations bills for agriculture and homeland security are among those included in the CR. As noted in previous FJ updates, each of these two proposed FY 2019 appropriations bills has troubling language regarding the H-2A temporary agricultural worker visa program. These provisions may still be included in the final FY 2019 appropriations bills. FJ will continue to monitor these bills.

Farm Bill Lapses After Congress is Unable to Reach Agreement

Another bill facing a September 30 deadline was the Farm Bill, which expired on this date after Congress was unable to reach a consensus for reauthorization. One of the main points of disagreement between the House and Senate was a House provision to attach work requirements to the Supplemental Nutrition Assistance Program (SNAP). FJ is also concerned by an attempt by the House to include the Pesticide Registration Improvement Act (PRIA) in the Farm Bill without key safety protections for farmworkers that were included in the Senate version of PRIA. FJ will continue to advocate for the House to pass the Senate version of PRIA as a standalone bill, in order to ensure both certainty for the pesticide registration program and adequate protections for farmworkers. The House is currently in recess until after the November 6 midterm elections. Many representatives will be back in their home districts campaigning during the month of October.

Canada Joins the U.S. and Mexico in New North American Trade Deal

On September 30, the United States, Mexico and Canada finalized a proposed new North American free trade agreement between the three countries. The new agreement, which would substitute the current North American Free Trade Agreement (NAFTA), is called the United States-Mexico-Canada Agreement, or USMCA. Among the multiple changes to NAFTA in the new agreement is the opening of the Canadian market to more U.S. dairy products, which was one of the most contentious issues in the negotiations between the U.S. and Canada.  The new agreement includes several labor protections that, under NAFTA, were placed in a “side agreement” called the North American Agreement on Labor Cooperation. Farmworker Justice and others have sought to enforce these protections for farmworkers in the U.S. The new agreement also includes a specific section focused on improving the rights to organize unions and engage in collective bargaining in Mexico. For more information, the full agreement is available at the Office of the U.S. Trade Representative’s website, including the agreement’s chapter on labor (Chapter 23).  The agreement still has to be approved internally in each of the three countries before it can go into effect. We will be providing further analysis at a later date.

Federal Judge Temporarily Blocks TPS Termination for Four Countries

On October 3, a federal judge in California blocked the Trump Administration’s decision to terminate temporary protected status (TPS) for individuals from Haiti, El Salvador, Nicaragua and Sudan. Approximately 300,000 individuals have been granted relief by the order, which resulted from a class action lawsuit alleging that the Administration’s decision to end TPS for these countries was in violation of the Administrative Procedures Act and was driven by racial animus. As a result of the decision, DHS is prohibited from terminating TPS for these countries pending the outcome of the case, unless there is an adverse decision on appeal. There are currently various other ongoing lawsuits regarding the Administration’s decision to terminate TPS for these countries, as well as a lawsuit related to the termination of TPS for Honduras.

Legal Victory in North Carolina for Farmworker Bargaining Rights

On September 20, a federal court in North Carolina issued an injunction against the North Carolina Farm Act of 2017, which sought to limit farmworkers’ rights to unionize and bargain collectively. The NC Farm Act was primarily sponsored by a NC state senator who is also a farm owner and had been sued for wage theft by his employees, with the help of the Farm Labor Organizing Committee (FLOC), North Carolina’s only farmworker union. The law prevents farmworkers and companies from agreeing to have union dues deducted from paychecks.  It also prevents settlements of lawsuits against a farm from including any agreements with an agricultural labor union. The Farm Act was challenged by FLOC, two individual farmworkers and a coalition of civil rights groups on the basis that it intentionally discriminates against farmworkers, more than 90% of whom are Latino. The court found that the Farm Act likely violates farmworkers’ Fourteenth Amendment right to equal protection and blocked its implementation.

Farmworkers Extremely Vulnerable During Hurricanes

As detailed in this Atlantic piece, farmworkers face unique challenges as the impact of a hurricane is exacerbated by their low wages, the broken immigration system and isolation. A recent Buzzfeed article recounts the disturbing story of a group of H-2A workers whose housing flooded during Hurricane Florence and whose requests for rescue were ignored. The workers were located in an isolated migrant labor camp in Jones County, in eastern North Carolina. When floodwaters started rising, the workers called 911. Although emergency crews were initially dispatched, the rescue was called off because the farm owner told authorities that the workers were fine. The workers reached out to local advocates, who also contacted 911 on their behalf,. The workers were eventually rescued by an employee of the North Carolina Growers Association and taken to a nearby shelter. They were thankfully unharmed. However, this story illustrates the vulnerability of H-2A workers and the extreme level of control that employers in the program have over fellow human beings. It is particularly absurd that emergency crews relied on the employers’ assessment of the situation rather than on the individuals actually calling for help.

Update on Farmworker Health and Safety

Public Charge Rule Text Released by DHS

On September 22, the Department of Homeland Security (DHS) released text of a proposed public charge rule; however, the proposed rule still has not been officially published for notice and comment. This rule would drastically expand the circumstances under which a person can be deemed a public charge. Use of benefits such as Medicaid and SNAP as well as a household income below 125% of FPL would be considered heavily weighed negative factors in an individual’s public charge determination. The proposed changes would make it more difficult for low-income farmworkers to enter the U.S. or adjust to Lawful Permanent Resident (green card) status. FJ condemns the proposed changes. Our statement can be found on our website. Shortly after the proposed rule is officially published in the Federal Register, FJ will share template comments with our network. We encourage everyone to submit comments and share stories about the rule’s impact on farmworker families in your community. For more information, please contact FJ’s Senior Health Policy Analyst, Alexis Guild, at [email protected]. FJ is also a member of the Protecting Immigrant Families campaign, which provides analysis and advocacy on this issue.

EPA Asks Court to Rehear Chlorpyrifos Case

On September 24, the U.S. Environmental Protection Agency (EPA) asked the Ninth Circuit Court of Appeals for a new hearing regarding the pesticide chlorpyrifos. As detailed in previous FJ updates, the Court had issued an order in August requiring the EPA to ban chlorpyrifos within 60 days, in accordance with the EPA’s own scientific evidence. The EPA’s request for a rehearing means yet another delay for the protection of public health, a situation which will particularly impact farmworkers and their children. FJ is one of the plaintiffs in the case.

Removal of EPA Child Health Expert Raises Concerns about Office’s Future

Last week, the EPA unexpectedly placed the director of the agency’s Office of Children’s Health Protection (OCHP), Ruth Etzel, on administrative leave. Many advocates are concerned that this decision might signal an elimination or weakening of the office as a whole. The EPA OCHP was formed in 1997, based on mounting scientific evidence that children and infants are uniquely sensitive to exposure to toxic chemicals such as pesticides. FJ believes that the OCHP plays a vital role in the protection of children, particularly farmworker children, from the negative health effects of exposure to pesticides. Its work should continue to be supported and advanced by the EPA.

Farmworker Justice Wine, Jazz & Award Reception

FJ’s annual Wine, Jazz and Award Reception will be held October 10 at the Beacon Hotel in downtown Washington, D.C. This year we will present an award to Lupe Martinez, CEO of UMOS, the Wisconsin-based nonprofit organization, who also is chair of the National Farmworker Alliance, and Board Member of Farmworker Justice.  Sponsorships and tickets are available on Farmworker Justice’s website event page. Please join us!

 

September 24, 2018

Farmworker Justice (FJ) condemns the Trump Administration’s proposed changes to immigration policy regarding the “public charge” requirement that would deny visas and permanent resident status, and ultimately U.S. citizenship, to low-wage immigrant workers.  

 The proposed rule drastically expands the public benefit programs that would be considered in a public charge determination, including SNAP, Medicaid, and housing assistance. It also imposes an income test of 125% of the Federal Poverty Level ($15,175 for a single individual) under which an immigrant who earns below that income will find it much more difficult to enter the U.S. or adjust his or her status.

Farmworkers and other low-wage immigrant workers will be disproportionately harmed by this rule. Farmworkers’ wages are among the lowest of any occupation and their poverty rates are substantially higher than the national average. Instead of accessing programs that they and their families are already eligible for, farmworkers will be forced to make impossible choices about their health and well-being and will be driven further into the margins of the economy.

“The Administration would punish our farmworker families who earn low wages while working long hours in dangerous conditions to produce our food,” said Bruce Goldstein, President of Farmworker Justice, a national advocacy organization.  He added, “Farmworker Justice and our allies advocate many policy solutions that would help farmworkers improve their wage rates and reduce their poverty rates.”   

Our country thrives when we support and value the contributions of farmworkers and other immigrant communities. Farmworker Justice will work with advocates across the country to oppose this rule. We encourage everyone to share stories and, once the proposed rule is published, submit comments.

More information about public charge can be found on the Protecting Immigrant Families website. FJ will keep our networks posted on any developments.  For more information, you may contact Alexis Guild, Senior Health Policy Analyst, Farmworker Justice, (202) 372-7422, [email protected].

Farmworker Justice

www.farmworkerjustice.org

Sept. 24, 2018

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September 19, 2018

It needs to be said:  Farmworkers’ wage rates are too low.  Farmworkers provide us with abundant, safe, healthy food at relatively low cost.  They work hard in one of the most dangerous jobs in the nation. They should be compensated for it fairly.

Yet there is a real threat that Congress will soon legislate to lower farmworkers’ wages. Some agribusiness groups are complaining that they have to raise their wage rates due to a tightening in the farm labor market.  One 2018 report by an agribusiness-supported bank characterizes pay raises for farmworkers negatively, calling them “wage inflation.” 1

A conservative columnist, however, recently defended farmworkers’ right to benefit from a competitive labor market. 2 “So how much is someone’s time worth? The short answer:  Whatever someone else is willing to pay for it. Fine. But that rule suddenly doesn’t apply to farmworkers? Why not?”

Indeed, why not? Let’s look at the numbers on how farmworkers are compensated.

Farmworkers’ annual incomes are low.  About 30% of farmworker families live below the poverty line, according to the most recent  National Agricultural Workers Survey (NAWS).3That’s almost double the poverty rate of the U.S. as a whole (15.9% in 2012).4

Average and median farmworker household incomes ranged from $20,000 to $24,999.5  By comparison, the median US household income for the same year was over $54,000 and the average household income exceeded $76,000.6

Farm work is among the lowest paid jobs.  Data on farmworkers’ wages are imperfect but still tell a troubling story of low wage rates despite evidence of modest increases in the last few years.  One measure, The USDA Farm Labor Survey (FLS), surveys farms, but not farm labor contractors (“FLCs”). A second source, the Occupational Employment Statistics survey of the Bureau of Labor Statistics (BLS) does not survey farms; instead the BLS surveys farm labor contractors and other labor intermediaries that supply farmworkers to farms.  In either case, the data indicates an undervaluing of the physically difficult and dangerous work.

The BLS reports that the median wage for the Farming, Fishing and Forestry category falls at the bottom end with other workers in the food supply chain.7 According to the BLS, crop workers during 2017 averaged $11.24 per hour and livestock farmworkers earned $12.24 per hour. Interestingly, the farm labor contractors increased their wages much faster than inflation between 2012 and 2017, but these increases bolstered a lower wage rate compared to the farms in the USDA FLS.8

Nationally, farmworkers averaged $12.47 an hour during 2017, according to the USDA Farm Labor Survey (FLS) findings on wages of nonsupervisory crop and livestock workers combined.  The average wage in 2012 was $10.80 an hour. That’s an average annual increase of about 2.6% per year, which was slightly more than inflation.9 The USDA FLS reports average wage rates by region.  The Arizona and New Mexico region was the lowest at $10.46 per hour.  California, the largest agricultural state, averaged $13.18. Outside of Hawaii ($14.37), the Washington-Oregon region topped the list at $14.12 per hour.

One complexity in analyzing farmworkers’ wages is that a substantial percentage of crop workers are paid piece-rate wages, which allows growers to pay them based on the volume of fruits or vegetables they harvest.  Many piece-rate workers say that their pay stubs show an artificially inflated number of hours worked per day so that the employer makes it appear that their piece-rate earnings have yielded the required hourly minimum wage.

While these surveys show average wage rates exceeding the legal minimum wage, many employers only pay the minimum wage.  While several states have increased their minimum wage, including Florida at $8.25 per hour; California, $11.00; Washington, $11.50; Arizona, $10.50, the federal minimum wage has been stuck at $7.25 per hour since 2009 and does not apply in some circumstances, such as at small farms.  The federal law provides a floor in several states, such as Georgia, where the minimum wage of $5.15 does not even apply to farms.

Most farmworkers in the fruit and vegetable sector are employed seasonally, not year-round, and their wages are too low to yield a reasonable annual income.  In occupations such as education and construction, many seasonal workers are paid enough to make a decent annual income and keep them coming back each year. In many rural communities it is difficult for farmworkers to find a different job during the off-season, and unemployment compensation is often unavailable. We also need to consider that housing and other costs of living in rural communities where farmworkers work often are not cheap.10

If you think raising wages to help improve farmworkers’ lives would blow up your food budget, think again.  Farmworkers’ wages are a small part of the price paid by consumers and therefore large wage increases for farmworkers would barely dent consumers’ wallets.

As National Geographic reported, “Remember that farmworkers’ share of each U.S. household’s annual grocery bill is $45. If farm worker wages go up by 47 percent, grocery bills would go up just $21.15 a year, or $1.76 a month” per household. 11 Some well-paid fruit pickers in Washington State receive about $25.00 for filling a bin that holds 800 to 1,000 pounds of apples.  That’s 2.5 cents to 3 cents per pound going to the farmworker so that he or she, if picking fast, has the opportunity to earn $18 to $20 per hour.  What do you pay for those apples: $2.50 a pound or maybe $1.25 a pound on sale?

The modest rise in farmworkers’ wages is under attack.  Certain agribusiness groups are pushing hard for Congress to pass Rep. Goodlatte’s anti-worker, anti-immigrant Agricultural Guestworker Act.  This bill would replace the current H-2A temporary foreign agricultural worker program with an H-2C visa program. One of many reasons to oppose the bill is that employers who hire foreign guestworkers would no longer be required to pay at least the prevailing wage rates.   Employers could bring in hundreds of thousands of temporary foreign workers at below- market rates, and U.S. farmworkers would be forced to accept those wage rates or be denied a job, driving down wages for all farmworkers.  We must preserve and improve wage protections.

The modest increases in farmworkers’ wages in recent years are well-deserved, but much more needs to be done to improve wages, working conditions, occupational safety, health and access to justice.  It is especially important -- for workers, employers and consumers – that Congress grant undocumented farmworkers and their families the opportunity for immigration status and citizenship. We must continue the quest to end farmworker poverty.    

1. CoBank, “Help Wanted:  Wage Inflation and Worker Scarcity, U.S. Agribusiness Experiences Hiring Headaches ,” Aug. 2018, available at https://www.cobank.com/-/media/files/ked/general/help-wanted-aug-2018.pdf .

2. Ruben Navarrette, Jr. “For many, time is money — but does that include farmworkers?,” Sept. 8, 2018, https://www.sfchronicle.com/opinion/navarrette/article/For-many-time-is-... .

3. U.S. Department of Labor, “Findings from the National Agricultural Workers Survey, 2013-14,” Research Report No. 12 (published 2016) at iii, 37-38.  The survey asked farmworkers to report their income from the year before. We therefore compare the NAWS results to data in other surveys from 2012. Available at https://www.doleta.gov/naws/pages/research/docs/NAWS_Research_Report_12.pdf

4.  U.S. Census Bureau, American Survey Briefs, Poverty 2000 to 2012 (Sept. 2013) available at https://www2.census.gov/library/publications/2013/acs/acsbr12-01.pdf

5. NAWS, at iii and 37.

6. Income and Poverty in the United States: 2017 Table A-1, Households by Total Money Income, Race, and Hispanic Origin of Householder: 1967 to 2017, Bureau of Labor Statistics (U.S. Census Bureau), Sept. 12, 2018, available at https://www.census.gov/content/census/en/library/publications/2018/demo/...

7. Bureau of Labor Statistics, Occupational Employment Statistics (OES), May 2017 National Occupational Employment and Wage Estimates, see Occupational Groups 45-0000 (Farming, Fishing and Forestry Occupations, and 35-0000 (Food Preparation and Serving Occupations) , available at https://www.bls.gov/oes/current/oes_nat.htm

8. Bureau of Labor Statistics, Occupational Employment Statistics (OES), May 2017 National Occupational Employment and Wage Estimates, see Occupational Groups 45-2092 and 45-2093, available at https://www.bls.gov/oes/current/oes_nat.htm

9. Annual Average Wage Rates - Region and United States: 2016 and 2017, in Farm Labor, Nov. 16, 2017 (National Agricultural Statistics Service, United States Department of Agriculture) at p. 25, available at  https://www.foreignlaborcert.doleta.gov/pdf/USDA_FLS_report.pdf and Annual Average Wage Rates - Region and United States: 2011 and 2012, Farm Labor, Nov. 19, 2012, at p. 24 http://usda.mannlib.cornell.edu/usda/nass/FarmLabo//2010s/2012/FarmLabo-...

Also available at Farm Labor website, http://usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo.do;jsessionid=...

10. In the wine country of Napa Valley, California, where rents are unaffordable for farmworkers, some commute by car or van 2 to 4 hours round trip daily.  Esther Mobley, “Farmworker housing may get a subsidy boost in Napa,” San Francisco Chronicle, July 11, 2017. The Economic Policy Institute Family Budget Calculator provides the annual income needed for a modest standard of living for a family of two adults and two children, including for these major agricultural production areas:  $$102,776 in Napa County, California; 86,781 in Yuma County, Arizona; $74,674 in Yakima County, Washington; $71,046 in Polk County, Florida; $89,709 in Wayne County, New York; and $76,822 in Berrien County, Michigan.

11. Tracie McMillan, “Can We Afford to Pay U.S. Farmworkers More,” National Geographic, March 31, 2016, available at https://www.nationalgeographic.com/people-and-culture/food/the-plate/201...

 

Latest News

July 26, 2018

The House Appropriations Committee today, in the spending bill for the Department of Homeland Security, inserted a fundamental, substantive policy change to the H-2A temporary foreign agricultural worker program. The amendment would expand the scope of the H-2A program to allow H-2A visas to be issued without regard to whether the jobs are temporary or seasonal.  Rep. Newhouse (R-WA) led this effort.

 

June 25, 2018

Farmworker Justice strongly supports the Fairness for Farm Workers Act introduced today in the Senate and the House by Sen. Kamala D. Harris of California and Representative Raúl M. Grijalva of Arizona with numerous cosponsors. Farmworker Justice and our partners have been working with members of Congress on this important step toward treating agricultural workers with the respect they deserve.

January 25, 2018

Leading farmworker organizations and advocates for farmworkers in the United States and Mexico today are submitting a petition under the NAFTA labor side agreement challenging the failure of the United States government to comply with its obligations to protect international migrant workers who are hired under the H-2A agricultural guestworker program.  

The petition was submitted to the National Administrative Office in Mexico City for the North American Agreement on Labor Cooperation (NAALC), requesting action by the North American Commission on Labor Cooperation (“Commission”), which the U.S., Mexico and Canada established.

The petition was submitted by Farmworker Justice; the United Farm Workers (UFW); the Farm Labor Organizing Committee, AFL-CIO (FLOC); and Pineros y Campesinos Unidos del Noroeste (PCUN, Oregon’s farmworker union), which are based in the United States, and Proyecto de Derechos Económicos, Sociales y Culturales, A.C (ProDESC), which is based in Mexico.

Principle 11 of the NAALC, on Protection of Migrant Workers, states the parties’ goal of providing migrant workers in one nation’s territory with the same labor law protection that apply to its own nationals.  The Agreement also imposes enforceable obligations on the three nations to provide high labor standards; effective, impartial tribunals; effective remedies to achieve compliance with labor laws; and effective action by each government to enforce workers’ rights.

The principal federal employment law for farmworkers in the United States excludes H-2A agricultural workers from its protections and remedies.  That law is the Migrant and Seasonal Agricultural Worker Protection Act of 1983 (referred to as “AWPA” or “MSPA”).  It was passed to address persistent problems faced by farmworkers and strengthened an earlier law.

The petitioners seek to reduce abuses in the H-2A program, which recently has been expanding rapidly, to over 200,000 agricultural guestworkers in 2017, mostly from Mexico.  Abuses in the H-2A program have been reported by many sources over many years, including in the Farmworker Justice report, “No Way to Treat a Guest,” and a series of articles in Buzzfeed.   

The AWPA establishes obligations on farm operators and other agricultural businesses, including farm labor contractors. The AWPA contains significant protections regarding recruitment, hiring, employment, payment of wages, transportation, and housing of migrant farmworkers.  Importantly, the AWPA authorizes victimized workers to file a lawsuit in U.S. federal courts to enforce its protections.  It creates several remedies to compensate workers, stop ongoing violations, and deter future violations, including monetary damages, special “statutory damages” and injunctive relief.  

The exclusion of H-2A visa workers from the AWPA deprives them of labor protections, remedies, and access to federal courts, all of which have been deemed important and effective to protect migrant workers in the United States. Although the law and regulations of the H-2A program require certain protections for U.S. and foreign workers at H-2A program employers, the AWPA provides different and additional protections and remedies for U.S. migrant workers.  H-2A guestworkers seeking to enforce their employment contracts are relegated to state courts and often to inferior remedies under state contract laws.

H-2A guestworkers, arguably among the migrant workers most in need of protection due to their vulnerability, should not be excluded from AWPA’s protections and remedies.    

The petition, formally known as a “public communication,” requests commencement of proceedings under the Labor Side Agreement, formally known as the North American Agreement on Labor Cooperation (NAALC), to address the violations of the NAALC and obtain all appropriate remedies.  The petition seeks agreement among the U.S., Mexico and Canada, that the protections and remedies in the Migrant and Seasonal Agricultural Worker Protection Act, or their equivalent, will be extended to migrant workers employed in the United States under the H-2A temporary foreign agricultural worker program.

Contact information:

 

Bruce Goldstein

President, Farmworker Justice

Washington, D.C. 20036

202-800-2521

[email protected]

www.farmworkerjustice.org

 

Leydy Rangel

Communications Specialist

United Farm Workers Foundation

California

[email protected] / (760) 899-4604

(bilingual)

 

Elena Villafuerte

Responsable del Programa de Análisis e Incidencia

Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC)

(5255) 52122229/ 52122230- 758608840/ 75860885

[email protected]

Calle Zamora 169-A Condesa, México D.F.

Facebook /ProDESC.AC

Twitter: @ProDESC

www.prodesc.org.mx

(bilingual)