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Featured Blog

December 06, 2019

 

On November 21, 2019, the House Judiciary Committee passed the “Farm Workforce Modernization Act of 2019” (FWMA), H.R. 5038, out of the Committee by a roll call vote of 18-12, with all Democrats present voting for the bill.  The vote followed debate on the bill that took place on November 20.

The FWMA is a bipartisan compromise reached as a result of months-long negotiations between worker representatives, including the UFW, Farmworker Justice and UFW Foundation, and agricultural employers. The bill currently has 26 Democratic co-sponsors and 23 Republican co-sponsors. Farmworker Justice supports the bill. You can read a summary of the bill’s provisions here.

The mark-up of the bill in the Judiciary Committee lasted approximately four hours. During the mark-up, two Democratic amendments were proposed to the bill. The first, which was adopted, was an amendment by Rep. Jackson-Lee (D-TX) allowing Temporary Protected Status (TPS) and Deferred Enforcement Departure (DED) status holders to apply for Certified Agricultural Worker (CAW) status. Rep. Jayapal (D-WA) introduced a second amendment, which would ensure the eligibility of CAW individuals and their dependent family members for the ACA's plans, tax credits and cost-sharing reductions; however, in recognition that further education is needed in order to reach a consensus on this issue, Rep. Jayapal withdrew the amendment prior to a vote. Rep. Jayapal also read aloud several stories that Washington farmworkers shared with her during a visit to her office in support of the bill. Rep. Correa also welcomed the UFW and UFW Foundation farmworkers who traveled to DC to support the bill and were in the audience during the proceedings.

Republican members also offered amendments, all of which were voted down by large margins, with all Democratic committee members opposing the amendments. Rep. Lofgren and other Democratic members, such as Reps. Nadler and Raskin offered strong arguments against many of these amendments. The amendments focused on anti-worker and anti-immigrant issues such as lowering wages, undermining the legalization program, limiting workers’ access to legal remedies, and reducing other key protections for workers. Ranking Member Collins (R-GA) offered two amendments attacking key protections obtained for H-2A workers in the legislation: 1) the right to coverage under the principal federal employment law protecting farmworkers, the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and 2) creating a “right to cure” for employers after a complaint is filed.

Rep. Lesko (R-AZ), Rep. Chabot (R-OH), and Rep. Buck (R-CO) also offered amendments that would have limited the ability of farmworkers to participate in the legalization program and path to lawful permanent residency. In addition, Rep. Steube (R-FL) introduced a variety of amendments to provide additional anti-worker reforms to the H-2A program in the bill, such as lowering farmworker wages and having USDA administer the H-2A program rather than DOL. The compromise already included significant wage concessions from farmworkers.

Farmworker Justice appreciates the Judiciary Committee’s vote in favor of the Farm Workforce Modernization Act of 2019 because the bill, if passed, would enable hundreds of thousands of farmworker families to improve their living and working conditions and their participation in our economy and democracy.

December 04, 2019

 

Immigration Policy: House Judiciary Committee Approves Farm Workforce Modernization Act  

            On November 21, 2019, the House Judiciary Committee passed the “Farm Workforce Modernization Act of 2019” (FWMA), H.R. 5038, following debate the day before. The bill would make substantial revisions to immigration law regarding agricultural workers and their employers. The bill was the product of negotiations among Democrats and Republicans as well as farmworker advocates and employer trade associations. The bipartisan bill currently has 27 Democratic co-sponsors and 24 Republican co-sponsors. The bill passed the Committee by a vote of 18-12, with all Democrats present voting for the bill and all present Republicans voting against. 

The challenges to achieving a compromise that passes Congress are evidenced in the proposed amendments submitted during the Judiciary Committee’s markup of the bill. Some proposed amendments would have imposed unacceptable obstacles in the bill’s path to immigration status and citizenship for undocumented farmworkers and their family members.    Some Committee members sought to lower wage rates and make other anti-worker changes in labor protections in the provisions revising the H-2A agricultural guestworker program. All of these harmful amendments were defeated by strong margins. While some supporters of the bill expressed their desire to improve the bill by making it more helpful to farmworkers, they voted for it as written because they recognized that the bill is the product of complex, delicate compromises.

            Farmworker Justice, which helped the United Farm Workers negotiate the bill, strongly supports this legislation. You can read a summary of the bill’s provisions here. Although the bill has extensive support among stakeholders in agriculture, there are some farmworker organizations and agricultural employer associations that, for various reasons, are opposing or remaining neutral on the bill. You may wish to read a critique by a longtime pro-farmworker journalist, David Bacon.    

USDA Releases Farm Labor Survey

            On November 21, the U.S. Department of Agriculture (USDA) released the annual results of its Farm Labor Survey. The FLS is based on surveys of farm employers. The findings regarding wages paid during FY 2019 are of particular interest because they will be used by the Department of Labor (DOL) to set the 2020 “adverse effect wage rate,” which is one of the minimum required wage rates under the H-2A agricultural guestworker program. The survey category used by DOL is the annual average wage for field and livestock workers combined. At the national level, the rate was $13.99, up 6 percent from the 2018 average of $13.25 per hour. The DOL issues wage rates for each state based on regional survey results, which ranged from $11.71 per hour to $15.83. States with the lowest rates included Florida and Georgia; the highest rates were in Oregon and Washington; California was at $14.77.

Employers of Sheepherders Will Only Be Eligible for Temporary H-2A Workers

On November 21, the Hispanic Affairs Project and Towards Justice announced a settlement reached with the federal government to protect sheepherders. In the case, Hispanic Affairs Project, et al. v. Scalia, 15-cv-01562 (D.D.C.), Hispanic Affairs Project challenged the practice of bringing sheep and goat herders to fill a permanent labor need under the H-2A program, which is limited to temporary or seasonal work. Under the terms of the settlement, DHS and DOL agreed to modify the rules governing the use of guestworker visas for foreign sheepherders working in the United States to ensure that the program is not being used for permanent employment. On November 14, U.S. Citizenship and Immigration Services (USCIS) released a policy memo stating that effective June 1, 2020 sheep and goat herders can no longer be brought in under the H-2A temporary foreign worker program if they are being hired for year-round jobs. Comments on the new guidance are due December 14.

Farm Must Pay for Failing to Provide Safe Housing and Transportation

            On November 21, an administrative law judge found New Jersey farm, Sun Valley Orchards, guilty of labor violations. As a result, the farm must pay workers around $556,000 in back wages and penalties. Some of the violations included failure to provide sanitary housing, transporting workers in unsafe vehicles with unlicensed drivers, charging workers for meals, and firing workers without cause after they refused to sign false statements. Sun Valley Orchards continues to deny the claims and states that they will appeal.

Appropriations Deadline Pushed to December 20th

Congress recently extended the continuing resolution (CR) for FY 2019, which was set to expire on November 21, to December 20. The CR was sent to President Trump on November 21, and he signed the extension that evening. Many expect arguments over border wall funding to play a significant role in passing a full FY 2020 budget.   

Correction from 11/12 Farmworker Justice Update - In the last update, regarding the H-2A program, we stated, “This year saw only 57 denials of the 1,974 applications submitted;” however, that information was for Quarter 4 of the H-2A data not 2019 as a whole. The percentage of applications approved for FY 2019 was 96%.

 

Update on Farmworker Health and Safety

Children Working in Agriculture Unprepared for Risks

            Research from a variety of sources outlines the dangers children face in agricultural work. They do not receive adequate safety training, and as a result, more children die in agriculture than in any other industry. On June 20, Rep. Roybal-Allard introduced the “Children’s Act for Responsible Employment and Farm Safety of 2019’’ or the ‘‘CARE Act of 2019,” H.R. 3394, with the hope of improving conditions for children and closing some of the discriminatory exemptions from child labor rules available to agricultural employers.

November 14, 2019

 

Farm Workforce Modernization Act Introduced

            On October 30, Reps. Zoe Lofgren (D-CA) and Dan Newhouse (R-WA), introduced the “Farm Workforce Modernization Act of 2019.” This bipartisan legislation, H.R. 5038,  was the result of complex negotiations between members of Congress, farmworker advocates, including the UFW, UFW Foundation, and Farmworker Justice, and agricultural employer organizations.   

Of utmost importance, the legislation would recognize the important contributions of farmworkers to our nation's food and agriculture systems. It would eliminate the constant fear of deportation by enabling hundreds of thousands of farmworkers and their immediate family members to obtain a lawful immigration status and a pathway to citizenship. At least half of the nation’s roughly 2.4 million farmworkers are undocumented immigrants. With legal status and a path to citizenship, farmworkers would be better able to improve their wages and working conditions and challenge serious labor abuses. This would result in a more stable farm labor force, and greater food safety and security to the benefit of employers, workers, and consumers.

The bill also would revise the existing H-2A visa program to address some farm worker and employer concerns with the program. Farmworker advocates have pressed for reforms to reduce widespread abuses under this flawed program, while agricultural employers have lobbied heavily to remove most of its modest labor protections. The compromise codifies many of the existing protections in the program and includes some important new protections for farmworkers, but also contains various difficult concessions that were made in order to reach a bi-partisan agreement. Because the bill, if passed, would improve significantly the lives of hundreds of thousands of farmworkers and their family members, Farmworker Justice supports the Farm Workforce Modernization Act of 2019.  We urge you to contact your Members of Congress and ask them to support the bill.

DACA Goes to the Supreme Court

            On November 12, the fate of Deferred Action for Childhood Arrivals (DACA) was heard in the Supreme Court. Farmworker Justice stands with all recipients of DACA and joined an amicus brief challenging the Trump administration’s rescissions of the program and highlighting the DACA enrollee’s reliance interest in the DACA program.

November 21 Appropriations Deadline Approaching

November 21 marks the deadline for the current continuing budget resolution, which was passed at the end of September.  According to reports, Congress is expected to extend the deadline for another month, until approximately Dec. 20.

DOL Releases Fourth Quarter H-2A Data

The Department of Labor (DOL) recently released 2019 fourth quarter data on the H-2A program. The program’s growth continues, with an increase of 10.8%, bringing the H-2A program to a record 257,666 worker positions certified for FY 2019. Another noticeable change was that California now sits as one of the top four H-2A program users, beating out North Carolina, which previously held the fourth spot, by nearly 2,000 workers. The top states in descending order are Florida, Georgia, Washington, California, and North Carolina. As always, very few applications were denied. This year saw only 57 denials of the 1,974 applications submitted.

Article Highlights Lack of Overtime Pay for Farmworkers

On November 6, Civil Eats released an article highlighting the exclusion of farmworkers from overtime pay under federal law. The article notes that some states are beginning to address the discrimination farmworkers face in access to overtime pay. New York and California have both passed legislation through their state legislatures that establishes overtime pay protections for farmworkers, with California phasing in overtime pay after 40 hours a week and New York providing for overtime pay after 60 hours per week. In Washington state, a class action brought by farmworkers is challenging the exclusion of farmworkers from overtime pay as unconstitutional. The court held oral arguments on October 24th and a decision is expected in the next 4-6 months. As noted by Columbia Legal Service’s Lori Isley, “Excluding farmworkers who are doing some of the most dangerous work in our state violates their fundamental rights.”  

Meanwhile, at the federal level, Sen. Kamala Harris and Rep. Raul Grijavala re- introduced “The Fairness for Farmworkers Act,” H.R. 1080, earlier this year. Farmworker Justice supports this bill.  

Workers’ Rights Advocates Look to Chobani to Improve Dairy Farm Conditions

            On November 5, Forbes wrote about the conditions on dairy farms and the attempts to bring the yogurt company Chobani into efforts to improve labor rights for dairy workers. Dairy workers experience dangerous conditions on the job with long hours, low pay and few benefits, and no access to protections such as overtime pay (unless, as noted above, farmworkers are in one of the few states that provide any overtime protections to farmworkers). Organizers in New York are attempting to unionize workers to improve conditions, and they are hoping that Chobani, as a large buyer of dairy products, will step in to demand better conditions on the farms from which they purchase products. Chobani entered into an agreement with Fair Trade USA to address issues regarding dairy farmworkers, but the unions criticized the FTUSA system as weak on worker empowerment.  Separately, Chobani demurred on getting directly involved in New York state politics to help pass the farmworker labor law (S.6578) that was passed last session, but they are in the process of rolling out their Milk Matters plan by 2025, which includes workers’ rights.   

El Salvador TPS Holders Receive One Year Work Visa Extension

Temporary Protected Status (TPS) is granted to individuals from a country where it is temporarily unsafe for them to return for reasons such as natural disaster or war. Following action by the Trump administration to end TPS status for many countries, despite ongoing safety issues in the countries, the administration was enjoined in October 2018 from ending TPS for El Salvador, Haiti, Nicaragua, and Sudan. Following that, USCIS published a notice earlier this year with plans to follow the court order but still end the program for the above countries.      

On October 28, El Salvador and the U.S. announced an agreement regarding TPS holders in the United States. The U.S. will extend TPS status for those from El Salvador for one year, moving the ending deadline to January 2, 2021. Other countries including Haiti, Sudan, Honduras, Nepal, and Nicaragua are also currently protected until 2021, but that protection could end as soon as six months after the abovementioned injunction is lifted if the administration wins the pending court case.   

 

Update on Farmworker Health and Safety

EPA Announces Proposed Changes to the AEZ  

            On November 1, the EPA published a proposal to reduce the Application Exclusion Zone (AEZ), which is a buffer zone around pesticide applications meant to help avoid human contact, either directly or through drift. The proposed rule would restrict the AEZ to just within the farm owner’s property as well as exempt certain individuals, such as the farm owner’s family members and easement workers, from certain AEZ protections. This change puts workers and bystanders at increased risk. Fields are often close to each other or to public areas, and refusing to acknowledge that workers and others can be close by while not strictly on the property being sprayed, will likely lead to increased exposures.

California Fires Disrupt and Endanger Farmworkers

            In late October, a wildfire started in Sonoma County leaving hundreds of farmworkers without homes and wages. The large wildfires growing increasingly common in California are also endangering farmworkers’ health. The advice given to residents during times of high smoke is to remain indoors and limit exertion, but that is almost impossible when the work is in the fields lifting heavy boxes of grapes and other agricultural products. California failed to pass a smoke protection act in the previous session, but the state did put in emergency protections in July. These protections require an employer to check the air quality before and during work, and if it rises above a certain threshold the employer must either move the workers or provide smoke masks. However, the masks make breathing difficult. After the fire erupted, officials allowed growers to harvest the last of their grapes. Advocates worried that farmworkers, who are mainly Spanish speakers, were not receiving adequate safety information. Earlier this year, Senator Merkley introduced the federal Farmworker Smoke Protection Act of 2019 (S. 1815), which would provide protections to farmworkers in such emergencies. Farmworker Justice supports this bill.      

The Department of State Released a Proposed Rulemaking on Public Charge

            On October 10, the Department of State (DOS) published an interim final rule to align the requirements on U.S. foreign consulates with those finalized by Department of Homeland Security (DHS) earlier this year. The DHS rule is currently enjoined, but that ruling does not directly affect this rulemaking. DOS revised its Foreign Affairs Manual last year, and it does not appear that the agency has plans to repeal those changes in favor of this new rule. Farmworker Justice submitted comments.

ACA Health Insurance Open Enrollment

            Open enrollment for 2020 health insurance coverage through the ACA marketplaces opened on November 1 and runs through December 15 in most states. Lawfully present farmworkers, including H-2A workers and their families are eligible to enroll in health insurance coverage through the marketplace and for tax credits and cost-sharing reductions to reduce their monthly premiums and co-pays. While there is no longer a federal tax penalty for those who do not have health insurance, some states do have a tax penalty in effect. For more information about health insurance options, go to healthcare.gov or your state’s marketplace website. Materials for farmworkers on the ACA can be found on FJ’s website. We also encourage you to reach out to your local health center where there are certified enrollment assisters who can help enroll interested farmworkers.

Latest News

November 21, 2019

 

Farmworker Justice Statement on Vote to Approve Agricultural Worker Immigration Bill by House Judiciary Committee

            Farmworker Justice appreciates the markup and the vote by the House Committee on the Judiciary on November 21 to support passage of the Farm Workforce Modernization Act of 2019, HR 5038.  We thank the Committee Chair, Rep. Nadler, for the markup of this important bill regarding our agriculture and food system.

October 30, 2019

Farmworker Justice Statement on House Agricultural Immigration Reform Bill

(Washington, DC)   Today, Reps. Zoe Lofgren (D-CA) and Dan Newhouse (R-WA), introduced the “Farm Workforce Modernization Act of 2019.”  This bipartisan legislation was the result of complex negotiations between members of Congress, farmworker advocates, including the UFW, UFW Foundation, and Farmworker Justice, and agricultural employer organizations.

September 27, 2019

On September 24, Farmworker Justice, on behalf of 42 organizations, submitted to the US Department of Labor a 165-page comment and numerous exhibits responding to the DOL’s proposed changes to the H-2A temporary foreign agricultural worker program. 

            Farmworker Justice staff coordinated the comment process and, with several farmworker advocacy groups around the country, co-wrote and edited the detailed comment.  We also drafted shorter model comments which many farmworker-supporting organizations used to write their own comments.