Learn how Farmworker Justice helps farmworkers improve their living and working conditions. Highlights include:
Immigration Update: Preparing for Deferred Action Implementation
Keep Up Pressure to Protect Farmworkers from Pesticides
Connecting Farmworker Leaders and Migrant Health Centers
Increasing Farmworker Engagement with the Affordable Care Act
Farmworker Justice is deeply disappointed by the 5th Circuit’s decision yesterday to deny the Department of Justice’s request to stay the temporary injunction of DAPA and expanded DACA. This decision means continued delays in the implementation of the expanded DACA and the DAPA programs that could provide relief for 4-5 million hard-working parents and Dreamers of the United States. The decision came exactly one week after the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) was supposed to begin.
This ruling does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The full appeal is still pending and is tentatively scheduled for oral argument in early July. The decision does not affect the current DACA program announced in 2012, which is still in effect and accepting new applications and applications for renewal.
While disappointed, Farmworker Justice is not deterred. We will continue to defend President Obama’s administrative actions until the fight for administrative relief is successful. Roughly 700,000 farmworkers and their spouses could be eligible to come forward to apply for temporary protection from deportation and work authorization under the deferred action opportunities. The programs are well within the President’s authority and are a limited but important step toward addressing our broken immigration system. By eliminating the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.
Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families and other aspiring Americans.
The federal employment laws meant to provide protection for agricultural workers need more enforcement in order to improve the conditions in our fields, according to a new report released today.
The report by Farmworker Justice analyzes the Department of Labor’s (DOL’s) statistics on its enforcement of the minimum wage and other basic labor protections applicable to agricultural workers on farms, ranches, and dairies. Widespread violations of the minimum wage and other wage-hour laws in agriculture harm farmworkers, as well as the many law-abiding businesses suffering competitive disadvantage caused by unscrupulous employers.
In “U.S. Department of Labor Enforcement in Agriculture: More Must Be Done to Protect Farmworkers,” a report based on reviewing 8 years of agency data under two presidents, Farmworker Justice found a mixed record. The number of investigations of agricultural workplaces conducted by the Department of Labor’s Wage and Hour Division remained fairly consistent despite the hiring of additional investigators and a stated commitment to improving compliance on farms. The data revealed increases in the amount of time spent by agency investigators on agricultural workplaces, increases in the number of farmworkers at investigated employers, as well as increases in the amounts of backpay assessed for violations.
“Consumers of fruits and vegetables want to know that farmworkers in the field are treated decently, and law-abiding growers do not want to be undermined by businesses that violate wage-hour laws, but the reality is that there are widespread violations in agriculture. The U.S. Department of Labor plays an important role in deterring and remedying violations of law. The agency has modestly improved the quantity and quality of its enforcement of labor-protective laws, but many employers still view the risk and the financial consequences of getting caught as too small to deter them from violating the law,” said Bruce Goldstein, President of Farmworker Justice, a national advocacy group in Washington, D.C.
The report’s recommendations include:
• Increase the number of investigations per year and ensure that the Department seeks and collects the full measure of back pay, liquidated damages and civil money penalties.
• Continue increasing the Department’s use of important tools in the law, including the authority to ask a federal court to issue a “hot goods injunction” against the sale of goods produced in violation of the minimum wage. It also should continue increasing its use of the “joint employer” concept when farm operators deny that they “employ” any farmworkers on their farm and seek to impose sole responsibility for minimum-wage violations on farm labor contractors.
• Continue to improve collaboration with farmworker groups on the ground. DOL also should improve its education of the public and Congress about the value of its enforcement efforts on farms.
“The bottom line is that because many farmworkers are suffering systematic violations of basic labor standards, Congress should increase funding for enforcement of the wage-hour laws in agriculture. In addition, the Department of Labor should continue to allocate more investigator time to agriculture and continue to increase its use of all the tools that Congress provided to the agency to remedy and deter violations of employment laws,” added Goldstein.
Updates on Administrative Relief: Oral Arguments in the Texas v. United States case and Post-Injunction 3-year Employment Authorization Documents under 2012 DACA
On July 10, the United States Court of Appeals for the Fifth Circuit listened to oral arguments regarding President Obama’s DAPA and expanded DACA deferred action programs. The arguments are available here. If the Obama administration prevails and these programs are implemented, they would provide temporary, but renewable, relief from deportation for approximately 4.4 million undocumented immigrants currently living in the U.S. Roughly 700,000 undocumented farmworkers and their spouses are estimated to be eligible for DAPA or expanded DACA.1
Having heard the arguments, the three judge panel will now have to decide whether to keep in place the injunction issued by the district court in Texas or whether to lift the injunction and allow the programs to be implemented. The issues before the court are whether the state of Texas has standing for its lawsuit against the federal government and whether the claims presented by Texas and the other states are matters than can be decided by the federal courts. Alternatively, the Court can consider on constitutional grounds whether the president overstepped his authority when he created DAPA and expanded DACA programs. If the court finds that the President did overstep his authority, it would affirm the February injunction of the District Court that prevented President Obama’s plan from moving forward.
As to whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration (the “standing” issue), the arguments on that issue largely have centered on the costs Texas would incur by having to issue driver’s licenses to DAPA beneficiaries. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Texas is arguing that the driver’s license costs are an injury that gives them the right to sue. Texas Solicitor General Scott Keller told the panel that the suing states will be harmed if the president’s policies are allowed to take effect, as they’d result in undocumented immigrants gaining lawful presence in the U.S and becoming eligible certain health-care benefits.
On the other side of the arguments, the US Government’s lawyer (Benjamin C. Mizer, a principal deputy assistant attorney general) asked the panel to lift the injunction and clear the way for President Obama’s DAPA and expanded DACA programs. He noted that these programs are meant to protect qualifying immigrants from deportation and allow them to work in the country legally. Judges Smith and Elrod questionned the US government about its contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States. Assistant Attorney General Mizer argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound. Judge Elrod’s question in response underscored her skepticism - “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”
Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on the panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal of the injunction. In that prior opinion, they disagreed with the US Government’s contention that Texas had no standing. They also previously ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act (in other words, that the Obama Administration should have engaged in notice and comment rule-making to create the DAPA and expanded DACA programs), which the Justice Department disputes.
The July 10 oral arguments lasted for more than three hours. The judges did not say when a decision will be issued. Whoever the losing party is, it is likely they will appeal the decision. The losing party could seek “en banc” review by the 5th Circuit Court of Appeals; however, it is not clear that this would be advantageous for the US government to do. The next step would be a request for the Supreme Court to review the issue. The timing of the 5th Circuit’s ruling is important because of the limited intake of cases and calendar of the Supreme Court’s oral argument sessions as well as the upcoming presidential campaign. A decision from the nation’s highest court could come during the intensity of the 2016 presidential campaign. The last time around, after the appeals court considered the emergency request to stay the injunction, that ruling wasn’t handed down until more than a month after the oral arguments in April. It’s conceivable a final decision on the constitutionality of President Obama’s immigration executive order may not come until the summer of 2016.
DACA Post-Injunction 3-Year EADs
As we mentioned in our last update, the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been impacted is the issuance by DHS of 3-year employment authorization documents (EADs) after the issuance of the injunction on February 16, 2015. The Judge has ordered DHS to show compliance with the injunction by July 31, 2015 and DHS is replacing the 3-year EADs issued or mailed after the injunction with 2-year EADs. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction must be returned to DHS. If DHS does not recover the 3-year EAD, it may call recipients and possibly conduct home visits to recover the 3-year EADs. It is very important that individuals who fall in this category return their 3-year EADs. DHS is threatening to take adverse action against those DACA recipients who fail to return their 3-year EADs, including the possible termination of DACA employment authorization, with possible negative future implications.
This recall does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.
For those who would like assistance knowing whether the recall applies to their EADS, United We Dream has developed a tool for people to "screen" themselves: www.unitedwedream.org/uscisalert.
On CLINIC’s webpage in English and Spanish
And from NILC: http://nilc.org/nr071515.html.
1Ed Kissam and Jo Ann Intili, Number, Distribution, and Profile of Farmworkers Eligible for DAPA or DACA, (Revised/Expanded analysis), Werner-Kohnstamm Family Fund, Dec. 12, 2014, at p. 3, available at http://www.wkfamilyfund.org/docs/Profile-Farmworkers-Eligible-for-DAPA-or-DACA.pdf.
On November 20th, 2014 President Obama announced his plans for executive action on immigration. We applaud the President’s action, which includes a deferred action program that provides relief from deportation and work authorization for millions of undocumented individuals, including hundreds of thousands of farmworkers and their family members.
Immigration is a critically important issue for farmworkers. Learn about current legislation proposals impacting farmworkers.
Learn about the history of guestworker programs, H-2A program for temporary agricultural work, and the H-2B visa program.