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November 09, 2018

Rulemakings Related to the H-2A Program

Today, the Department of Labor’s Employment and Training Administration (DOL ETA) issued notices of proposed rulemaking regarding the recruitment requirements for the H-2 visa programs, both H-2A and H-2B. Farmworker Justice plans to draft comments on this proposal to ensure that recruitment protections for U.S. workers are not weakened. Comments are due December 10.

Last month, DOL ETA announced a proposed revision of the forms used for employer certification under the H-2A temporary agricultural worker visa program. The two forms being revised are Form ETA-9142A, which is the form employers use to apply for H-2A workers, and Form 790, which is the agricultural clearance order that contains job terms and instructions for job applicants. FJ will also draft comments for this rulemaking (the deadline for these comments is December 24).
Additionally, FJ is anticipating that, as announced in DOL’s fall regulatory agenda, there will be a broader set of proposed changes related to the H-2A program published in the coming months. FJ is deeply concerned that the anticipated changes could reduce critically important farmworker protections in the H-2A program. FJ will continue to monitor any administrative attempts to undo the current protections in the H-2A program.

USDA Proposed Changes to Farm Labor Survey Used in H-2A Program

Farmworker Justice submitted comments on November 8 to the US Department of Agriculture (USDA) regarding its proposal to make changes in its Agricultural Labor Survey (ALS), formerly known as the Farm Labor Survey.  The ALS includes data from farm operators regarding the wages paid to farmworkers. Although there are shortcomings in the survey that limit is value, it provides helpful information. For many years the Department of Labor has set the H-2A program “adverse effect wage rates” for each state based on the ALS findings for average hourly earnings of the combined category of field and livestock workers. The proposed change in the survey regarding wage reporting contained vague and troubling language that could lead to understating farmworkers’ wage rates and artificially lowering the minimum wage rates required under the H-2A program.  FJ therefore opposed some of the proposed revisions to the survey’s questions.

Washington Ag Employer Fined for Discrimination, Sexual Harassment and Retaliation  

Last month, the Washington State Attorney General announced a consent decree ordering Horning Brothers, LLC, an agricultural employer, to pay $525,000 for claims of sexual harassment, sex discrimination and retaliation. The company must also adopt non-discrimination and anti-retaliation policies. The Northwest Justice Project worked on the case alongside the WA Attorney General, and represented five of the affected workers. In a lawsuit filed last year, the plaintiffs alleged that the company, which owns an onion packing shed, only hired women to sort onions on the packing line, and limited the hiring of women for other positions. Furthermore, the company ignored female employees’ complaints about sexual harassment by one of its foremen, and retaliated against those who complained. This case highlights that discrimination and harassment are unfortunately still very prevalent for women in the agricultural industry.

Massachusetts Overtime Pay Case for Agricultural Workers

On November 5, the Massachusetts Supreme Judicial Court heard oral arguments in a case which has the potential to award overtime pay for workers who clean, pack and sort bean sprouts at an indoor growing and packing facility. The case presents an issue of first impression under Massachusetts law, which, like federal law, excludes farmworkers from the right to overtime pay. Generally, workers in a processing plant are not considered agricultural workers for purposes of the overtime exemption. Farmworker Justice has supported efforts to amend federal and state employment laws to end the discriminatory exemption of agricultural employers from paying agricultural workers overtime.  

Ballot Measures Increasing Minimum Wage Succeed in Arkansas and Missouri

Two ballot measures increasing state minimum wages succeeded in the November 6 midterm election. The state of Arkansas voted to gradually increase its minimum wage from $8.50 an hour to $11 an hour within the next three years, while Missouri voters approved a gradual increase from $7.85 an hour to $12 an hour within the next five years, with further adjustments based on the consumer price index. However, some exemptions for particular agricultural businesses and farmworkers from the minimum laws in these states mean that some farmworkers will not benefit from these changes. There are exceptions in the state laws applicable specifically to agriculture that are similar to those in the federal Fair Labor Standards Act (FLSA), including for small agricultural employers; livestock workers on the open range; family members of the farm operator; children under age 16 employed on piece rate; and for those farmworkers who are hired on piece-rates to do harvesting and worked in agriculture less than 13 weeks in a prior year.  

Mixed Midterm Election Results

The November 6 midterm elections led to mixed results for Congress: Democrats were able to take control of the House, while Republicans deepened their control of the Senate. The prospects for progress on legislation that would benefit farmworkers remain very limited, but several proposals in the last Congress that threatened farmworkers’ employment rights and immigration status are not likely to proceed in this Congress. With Democrats assuming leadership roles in key House committees in January, they will be poised to conduct oversight over the President’s actions, as well as the policies of government agencies such as the Department of Homeland Security (DHS), the Department of Labor (DOL), the Environmental Protection Agency (EPA) and the Department of Agriculture (USDA). Each party will also soon be selecting its internal party leadership. House GOP leadership elections are scheduled for November 14, with Jim Jordan (R-OH) and Kevin McCarthy (R-CA) competing for the role of minority leader.  Rep. Nancy Pelosi (D-CA) has announced her campaign for Speaker of the House, the position she held when Democrats previously held the majority of House seats.

Government Asks Supreme Court to Intervene in DACA Cases As Program Continues

Yesterday, a federal court in California continued the injunction against the Trump Administration that prevents it from terminating the Deferred Action for Childhood Arrivals (DACA) program. The 9th Circuit Court of Appeals ruled unanimously in favor of the preliminary injunction issued earlier this year by U.S. District Judge William Alsup, which kept DACA operational while its future continues to be litigated. Two other decisions by federal judges earlier this year, in New York and Washington, D.C., also led to injunctions against the Administration’s decision to end the DACA program, thus allowing DACA recipients to renew their applications. Since January 2018, approximately 180,000 DACA recipients have renewed their applications.

Earlier this week, the Department of Justice (DOJ) petitioned the Supreme Court to fast track these DACA cases. If the Supreme Court grants certiorari and decides to take the cases, the earliest a ruling could be expected is June 2019.  If you or someone you know has DACA status which expires within the next 6 months, experts recommend that you consult with an immigration attorney and submit your renewal application. Unfortunately, at this time, no first-time DACA applications are being accepted. You can learn more about the status of current DACA cases, as well as steps to take to renew your DACA status here.    

 Jeff Sessions No Longer Attorney General

On November 7, President Trump announced via Twitter that Jeff Sessions will no longer be serving as Attorney General, the highest post in the Department of Justice (DOJ), having been forced to resign immediately after the election. Matthew G. Whitaker, who was the Justice Department Chief of Staff, was appointed Acting Attorney General until a permanent replacement is confirmed. During his tenure as Attorney General, Sessions, a former Senator from Alabama, pursued a strenuous agenda antagonistic to immigrants, civil rights and liberties, and criminal justice reform.  

Update on Farmworker Health and Safety

Scientific Paper on Pesticide Exposure and Children’s Neurodevelopment

A new scientific paper details the dangers that organophosphates, which are widely used agricultural pesticides, pose to children’s health and development. The researchers found that even low levels of exposure can lead to cognitive problems in children. One of these pesticides, chlorpyrifos, was on track to be banned by the Environmental Protection Agency (EPA), but the current Administration ignored the findings of its own scientists and has allowed continued use of the neurotoxin. Worker and health advocates challenged the Administration’s reversal, and that litigation is currently ongoing (as detailed in previous FJ updates.) The paper also sets out some recommendations that could result in substantial reductions in pesticide exposure. You can read the full paper here.

Report on Impact of Heat Stress on Florida Workers

A recently released report by Public Citizen and the Farmworker Association of Florida details the impact of heat stress on Florida workers. According to the report, farmworkers and construction workers are the highest risk populations, not just because of their exposure to heat, but also because of other factors, such as fear of immigration enforcement, which might make them less likely to voice health or safety concerns. The threat of heat illness is growing due to rising global temperatures. As mentioned in previous updates, FJ, along with Public Citizen and many others, is involved in a national campaign for a federal heat stress standard. If you are interested in supporting this campaign, please contact FJ’s Director of Occupational & Environmental Health, Virginia Ruiz, at [email protected].

Farmwork Among Fifteen Most Dangerous Jobs Based on Fatality and Injury Rates

 A recent article ranks jobs based on occupational fatality and injury rates of the Bureau of Labor Statistics (BLS) data. It states that agricultural workers (separate from farmers) have the 11th most dangerous job while also having the lowest wages on the list of 15 most dangerous jobs. The article calculated that farmworkers are five times more likely to have a fatal injury than the average worker. The most common cause of fatal injury for most of the occupations, including farmworkers, was transportation accidents. The article may understate the dangers of agricultural work. The BLS data for 2016 by industry shows that the farming, fishing and forestry category had the highest rate of fatalities per 100,000 workers, at 23.2, over 6 times the 3.6 overall average rate. At a more detailed level, in crop production, the rate of fatalities per 100,000 workers was 20.9, higher than mining and construction and only slightly lower than transportation. The rate for animal production and aquaculture was 20.9.  
 

October 30, 2018

The latest Department of Labor data show tremendous growth in the H-2A temporary foreign agricultural worker program.  The DOL approved almost a quarter of a million—a total of 242,762—H-2A positions in fiscal year 2018. In just the last year, the number of approved H-2A jobs grew by 21% and the number of employer applications grew by over 16%. The program has tripled in size in the last decade: in 2008, 82,000 positions were certified.

Continued massive expansion of the H-2A program is expected as there is no cap on the number of workers who may be brought in on H-2A visas. Moreover, the anti-immigrant rhetoric and actions of the Trump Administration and its allies in Congress are further driving the increase of the H-2A program.  In the absence of immigration reform that would grant legal immigration status to current undocumented farmworkers, each year more employers request and receive approval to hire H-2A workers. The Administration’s anti-immigrant and nativist agenda is highlighted by their support for an exploitative model of temporary indentured workers rather than an immigration system that welcomes immigrants and new citizens.

This rapid growth of the H-2A program is deeply troubling because the H-2A program exploits both guestworkers and domestic workers and should not be expanded. A recent example highlights the abusive nature of the H-2A program. Over the summer, the Department of Labor’s Wage and Hour Division (DOL WHD) won a court injunction against an H-2A employer in Missouri. WHD investigators found that in addition to wage violations, the employer had provided unsanitary and unsafe housing, with some of the workers housed in a former jail.  Workers reported fainting from heat stroke, and the fields where they were working lacked adequate access to water and restroom facilities. This example is far from unique. The anti-trafficking organization Polaris recently released a report on human trafficking in temporary work visa programs which showed that the category with the most reported trafficking cases—over 300—was the H-2A program.

Unfortunately, the massive expansion of the H-2A program has not been accompanied by increased resources for enforcement of employers’ obligations. Moreover, we are seeing multiple efforts to strip labor protections from the program and allow new categories of businesses access to captive H-2A visa holders. For example, a rider was added to the FY 2019 House DHS appropriations bill that would expand the H-2A program to include year-round employment in agriculture. This change would undermine the intent of the H-2A program to address more-difficult-to-fill temporary and seasonal jobs. It also would result in displacing many of the documented and undocumented immigrants who depend on these jobs for their livelihood, ensure their employers’ productivity and are integral members of their rural communities.

Another threat comes from anticipated changes to regulations to eliminate key protections in the program.  In May 2018, the DOL, DHS, State Department, and USDA jointly announced their intent to “modernize” and “streamline” the H-2A program to “deliver for America’s farmers.” The DOL’s recently-published regulatory agenda includes several proposed changes in the H-2A program. Farmworker Justice is concerned that the Administration will seek to strip away essential labor protections and oversight.

Farmworker Justice opposes any changes to the H-2A program that would expand the scope of the program to year-round work or that would lower wages or otherwise reduce worker protections or DOL oversight. Policymakers should not convert our agricultural workforce into a massive system of indentured temporary workers deprived of the right to vote.  A key solution to reforming our broken immigration system is providing a path to immigration status and citizenship for farmworkers and their families.

H-2A Program Trends and Observations

Growth in States

• From FY 2017 to FY 2018, several states saw significantly large increases in program usage, including an increase of 38% in Georgia, 34% in Washington, 30% in Michigan, 24% in Arizona and California, and 20% in Florida.  
• Georgia is now the number one state for number of H-2A positions certified, with 32,364 positions certified; Florida is in a close second at 30,462 positions certified.  With an estimated total of roughly 61,000 farmworkers in Georgia, the number of H-2A jobs approved accounts for about half of all farmworkers in Georgia.[1]

H-2A Top Employers

• The top three employers in the H-2A program are labor contractors or growers’ associations, rather than individual farms.
• Top employers have increasingly been using the H-2A program to fill non-agricultural tasks such as construction in farming operations. For example, a recent article detailed employers’ use of the H-2A program to fill farm construction jobs with H-2A workers. One of the companies mentioned in the article, Alewelt Concrete, Inc, was the fifth largest employer for all of the H-2A program in FY 2018.

Crops and Occupations in the H-2A Program

• The top crop for the H-2A program in FY 2018 was once again berries, at over 25,000 worker positions certified. The “General Farm Workers” category is a close second with about 24,000 worker positions certified.  Other top 10 crops/occupations include tobacco, apples, melons, fruits and vegetables, lettuce, corn, cherries, and nursery and greenhouse workers.


Source: Selected Statistics, FY 2018, H-2A Temporary Foreign Labor Certification Program, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor.


Farmworker Justice, October 30, 2018

[1] National and State Estimates of the Number of LSC-Eligible Agricultural Worker Populations, Table I Final State and National Estimates of the LSC-Eligible Agricultural Worker Population, Summary Table, available at https://lsc-live.app.box.com/s/dfsy78qhagsk12oxi6fr79pd5eq0geqp.

October 22, 2018

H-2A FY 2018 4Q Data Now Available

           The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently released H-2A program data for the fourth quarter of FY 2018. There were a total of 242,762 H-2A positions certified for all of FY 2018, an approximately 20% increase from FY 2017. This latest data is in line with the overall trend of exponential growth in the use of the H-2A temporary agricultural worker visa program in the last decade. The states of Georgia, Florida, Washington, North Carolina and California had the highest number of positions certified, accounting for over half of all positions.

Washington State Considering H-2A Filing Fees for Employers

           In response to the exponential growth of the H-2A program, as well as a lack of adequate resources from DOL to enforce the program and carry out its other program responsibilities, the Washington Employment Security Department is proposing to charge employers for their H-2A applications. Under the proposal, the department would charge employers $1,000 to use the H-2A program, plus an additional $100 per worker for the first thousand workers and $50 per worker after that. The Department estimates that the fees would raise approximately $3 million.

Settlement Reached in Washington H-2A Worker Retaliation Case

           Columbia Legal Services recently announced a settlement agreement between 18 H-2A workers and Familias Unidas por la Justicia (an agricultural workers’ union in Washington representing H-2A workers) and Larson Orchards. The settlement resulted from a lawsuit brought by the workers against Larson Orchards after they were retaliated against for participating in a strike in 2017. In spite of a written agreement prohibiting retaliation, the workers were not re-hired for the 2018 season. The settlement includes $275,800 with specific payments directly to the workers as well as a promise by Larson Orchards to include the workers on its list of preferred workers in 2019.

Grower Fined for Retaliating Against Workers Who Raised Workplace Safety Concerns

           The California Agricultural Labor Relations Board recently found that a Coachella Valley date grower illegally fired four workers after they voiced concerns about workplace conditions. The grower agreed to settle the matter without admitting liability. As part of the settlement, the company, KR Thermal, will re-hire the workers and pay them approximately $40,000 in lost wages. Charges were brought by the workers in 2017 alleging that they were fired after they expressed concerns over the safety of date harvesting equipment, a lack of functioning restrooms and other issues. The company employed the workers through farm labor contractor Desert Harvest and has now stopped using the labor contractor. A KR Thermal representative expressed that the labor contractor should be the one held accountable, while the labor contractor claimed that the grower was solely responsible. Under the CA Agricultural Labor Relations Act, an employer is responsible for the acts of a labor contractor.

DOJ Settles Immigration Discrimination Case with Poultry Company

           On October 9, the Department of Justice (DOJ) announced it had reached a settlement with Mar-Jac Poultry, Inc., a Georgia poultry processing company. Under the settlement agreement, Mar-Jac was assessed a civil penalty of $190,000. According to a complaint filed in 2011, Mar-Jac Poultry routinely required work-authorized non-U.S. citizens to present certain documents to prove their work authorization, but did not require similar documents from U.S. citizen employees. The Immigration and Nationality Act (INA) prohibits employers from subjecting employees to unnecessary documentary demands based on their citizenship status or national origin. The Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. IER’s worker hotline can be reached at 1-800-255-7688.

Rep. McCarthy Introduces Draconian Immigration Bill

           House Majority Leader Kevin McCarthy (R-CA) recently introduced a draconian anti-immigrant bill, the “Build the Wall, Enforce the Law Act of 2018” H.R. 7059.  Rep. McCarthy is hoping to lead the GOP conference next year as speaker or minority leader after the retirement of current Speaker Paul Ryan (WI). Other Republican representatives angling for the leadership role include Jim Jordan (OH) and Majority Whip Steve Scalise (LA). Among the McCarthy bill’s terrible provisions are over $20 billion in funds for the building of a border wall and billions more in funding to incarcerate families, children and asylum seekers indefinitely and without due process.

Senate Strikes Deal on Judicial Appointments, Starts Early Recess  

           The Senate went into early recess last week. It was originally scheduled to be in session until the end of October and was planning to spend the bulk of that time on judicial confirmations. Democratic leadership expected fifteen judicial nominations to be approved given the Republican majority in the Senate, and made the decision to agree to all the appointments and adjourn early to focus on vulnerable seats in the upcoming mid-term elections. With this latest round of confirmations, the Trump Administration has confirmed a total of 84 judges, including two Supreme Court justices. Various civil rights groups criticized the Senate deal, particularly given its timing after the highly controversial confirmation of Supreme Court Justice Brett Kavanaugh. The House already adjourned last month, and like the Senate, is not set to return until after the November 6 mid-term election.

 Farmworker Health and Safety

Public Charge Rule Posted in Federal Register

          On October 10, the Department of Homeland Security (DHS) posted its proposed rule on public charge. The proposed rule would drastically change how public charge determinations are made when individuals apply to enter the U.S, extend or change their non-immigrant visa (including H-2A and H-2B status), or adjust to lawful permanent resident (LPR) status. FJ’s statement on proposed changes to public charge can be found on our website. In the next few weeks, FJ will share template comments that can be modified by organizations. We encourage organizations to submit their own comments that include stories about the rule’s potential impact on the farmworker communities you serve. The comment period is open until December 10. FJ is a member of the Protecting Immigrant Families campaign and is supporting efforts to ensure a robust response to the proposed public charge rule. Contact Alexis Guild, FJ’s Senior Health Policy Analyst, at [email protected] for more information.

ACA Open Enrollment Begins November 1

          The 2019 open enrollment period for the health insurance marketplace begins on November 1.  In-person assistance is available to help consumers enroll and/or to answer any questions about their health insurance. Subsidies to lower the cost of health insurance continue to be available to consumers with a household income up to 400% FPL (federal poverty level). There will no longer be a penalty for not having health insurance in 2019. In most states, open enrollment ends December 15. You can find more information about open enrollment at healthcare.gov. FJ’s Affordable Care Act (ACA) guides for workers can be found in our resource center.  

Trump Administration Increases Poultry Line Speeds

           Labor, consumer and animal rights groups have decried the Trump Administration’s recent decision to allow faster speeds for poultry-processing plants. Plants will be able to obtain waivers to process up to 175 birds per minute, up from the previous limit of 140 birds per minute. Injury rates for poultry workers are 60% higher than the national average for all private industry, and line speeds play a role in the rate of injuries. The typical pay for a poultry-processing worker is about $25,000 a year, and the workforce is increasingly composed of immigrants. Earlier this year, the Trump Administration also proposed eliminating the current limits for hog processing line speeds, a proposal which has similarly received strong opposition from food safety and labor groups.

Latest News

November 07, 2018

FOR IMMEDIATE RELEASE                 Contact:  Bruce Goldstein, President

November 7, 2018                            (202) 293-5420 [email protected]

David Damian Figueroa, respected non-profit leader, activist and entertainment professional, will oversee Farmworker Justice’s corporate and foundation partnerships, giving campaigns, special events, and branding initiatives.

Washington, D.C. – Farmworker Justice announced the appointment of David Damian Figueroa as Director of Development. Figueroa will be based in California’s Coachella Valley and will report to the national organization’s president, Bruce Goldstein. Figueroa will be charged with increasing partnerships with foundations, corporations, and philanthropists.  He will also be responsible for enhancing Farmworker Justice’s, individual donor base, organizational capacity, and raising the visibility of the organization’s policy advocacy, impact litigation, training and education programs, and corporate responsibility initiatives.

“We are very pleased we have this opportunity to take advantage of David Damian’s many skills and resourcefulness. He is an accomplished innovator in philanthropy, non-profit communications, branding, and content marketing. He comes to Farmworker Justice with a background as a farmworker and a wealth of valuable experience and we are excited to have him as part of our senior team,” stated Goldstein.

Prior to joining Farmworker Justice, Figueroa was the AVP of Branding, Content Marketing and Strategic Alliances at Frontier Communications.  He served at the Mexican American Legal Defense and Educational Fund (MALDEF) from 1998 to 2001 and rejoined the organization as Vice President of Development and Strategic Communications from 2009 to 2015. Figueroa served as Associate State Director of the Los Angeles County Region for AARP California from 2002 to 2009 where he oversaw the implementation of social campaigns, community alliances, volunteer management and membership development. Figueroa also helped launch AARP’s Segunda Juventud bilingual magazine in Los Angeles.

“I’m excited and honored to have the opportunity to work for Farmworker Justice at such a critical time in our country.  In my youth, I spent most of my summers and many weekends working in the fields and orchards of southern Arizona. It is my intent to bring  the hardship of the farmworker to light and work with the team and key partners to identify and implement high-impact solutions that benefit our nation’s farmworkers,” said Figueroa.

For the past 26 years, Figueroa has served as a philanthropic advisor to numerous celebrities. He specializes in forging meaningful relationships with celebrities with non-profit organizations to heighten awareness for social impact campaigns.

Partnering with actors/activists Eva Longoria, Forest Whitaker, and author Eric Schlosser (Fast Food Nation), David Damian has brought greater focus to the farmworker issue, working as executive producer on the critically-acclaimed documentary Food Chains, which focused on the corporate food supply chain and the Coalition of Immokalee Workers Fair Food Campaign.  He was also was associate producer of The Harvest—The Children Who Feed America/La Cosecha—Los niños que alimentan America.

Prior to committing to service in the non-profit sector full-time, Figueroa achieved an influential role in the entertainment industry, fostering the success of clients including José José, El Show de Johnny Canales, Boyz II Men, Arista Latin, MCA Polygram, BMI Latin, Motown Latino, Tito Puente, Celia Cruz, Marc Anthony, and India for RMM/Universal.

Founded in 1981, Farmworker Justice is a nonprofit organization that seeks to empower farmworkers to improve their wages and working conditions, immigration status, health, occupational safety, and access to justice. For more information, please visit www.farmworkerjustice.org

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.