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August 16, 2018

This week, we celebrate National Health Center Week. Community health centers serve a vital role in the health and well-being of millions of people across the United States through the provision of affordable, high-quality preventative care.  Today, on agricultural worker health day, we want to highlight the important role of migrant health centers to the health of our nation’s agricultural workers and their families.

The barriers to health care access in farmworker communities are numerous: lack of transportation, fear due to immigration status, lack of health insurance, poverty, lack of sick leave, and cultural and linguistic barriers, among others. Migrant health centers tailor their services to the health care needs of agricultural workers and their families. Many health centers have mobile clinics that bring clinicians at hours that are convenient, such as nights and Sundays. Outreach workers and promotores de salud (lay health workers) provide health education to community members and help workers access the health center, make appointments, enroll in health insurance, etc. In addition, health centers provide services on a sliding fee scale so low-income patients who are uninsured or underinsured pay a discounted rate based on their income and family size.

There are 174 migrant health centers. Together, they served 972,251 agricultural workers and their families in 2017 (source: HRSA UDS 2017).  In many agricultural worker communities, migrant health centers are the primary source of health care. Yet only approximately 20% of the nation’s workers and their family members are seen by health centers. To increase access and utilization of health care services, FJ partners with national, state, and local organizations to promote collaboration between health centers and other farmworker-serving organizations, such as Migrant Head Start and legal services organizations.  As a HRSA National Cooperative Agreement, we developed materials to increase community awareness of health centers and promote access to health care. These materials, available in Spanish, English, and Haitian Creole are on FJ’s website.

Farmworkers and their families deserve health care that is affordable, accessible, and culturally competent. Farmworker Justice is pleased to celebrate Agricultural Worker Health Day and support health centers’ mission to provide high quality health care to farmworkers and others underserved populations.

August 16, 2018

Farmworker Justice Update: 08/15/18

H-2A Data Published for Third Quarter of FY 2018

The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently released H-2A program data for the third quarter of FY 2018.  The data shows that there have been 193,603 positions certified so far this fiscal year. A total of 200,049 H-2A positions were certified in all of FY 2017. Thus, it is likely that the total number of positions certified in FY 2018 will be significantly higher than those certified in FY 2017, in line with the broader trend of continued growth of the H-2A program. The states of Georgia, Florida, Washington, North Carolina and California had the highest number of H-2A positions certified during the first three quarters of FY 2018, accounting for more than half of all positions certified.

Recent Cases Demonstrate Abuses in H-2A Program and Vulnerability of Workers

On August 6, the Department of Labor’s Wage and Hour Division (DOL WHD) announced a temporary restraining order and preliminary injunction against Marin J. Corp, an H-2A employer in Missouri. WHD investigators found that the employer provided unsanitary and unsafe housing and also failed to pay workers required wages. Marin J. Corp employed more than 100 H-2A workers and housed some of the workers in a former jail. Several of the workers also reported fainting from heat stroke and the fields where they were working lacked adequate access to water and restroom facilities.

Also last week, farmworkers in New York filed a lawsuit against their employer for failure to pay legally required wages and for providing unsafe and overcrowded housing.  The workers are represented by the Worker Justice Center of New York. They are seeking unpaid wages and overtime pay from 2012 through the present, plus monetary damages for the substandard housing. The employer involved participates in the H-2A program, but allegedly paid the plaintiffs, who are domestic workers, lower wages than those required under the program.

In Washington, there is ongoing activism and challenges following the death of an H-2A worker last year. Fellow workers were fired when they went on strike to demand better working conditions and their employer, Sarbanand Farms, was fined earlier this year by the DOL for not providing required breaks and meal periods. The case is detailed in a recent article in The American Prospect by David Bacon entitled “What Was the Life of this Guest Worker Worth?” The article quotes FJ President Bruce Goldstein on a variety of H-2A issues. It also mentions WAFLA’s (formerly the Washington Farm Labor Association) manipulation of wage surveys in order to drive down wages. FJ is working with Washington state advocates to protect farmworker wages.

ICE Raids Agricultural Facilities in Nebraska and Minnesota

On August 8, ICE raided various facilities in Nebraska and Minnesota, including a tomato greenhouse, a cattle feedlot and a potato processing facility. ICE agents arrested 133 workers.  Seventeen employers were also arrested based on allegations including wire fraud and money laundering. The arrests resulted from an investigation centered on a recruiter who hired workers for the various businesses involved. The recruiter allegedly forced employees to cash their paychecks at his grocery store, charging them a fee. He also allegedly withheld a portion of each paycheck, claiming he was withholding taxes but instead pocketing the money.

A particularly disturbing aspect of these recent raids is that the employees who were allegedly cheated by these abusive employers are being detained themselves. This will likely have a chilling effect on other employees who might be willing to denounce employer abuses in the future, because they will fear immigration reprisals for themselves or their colleagues. The local communities in the areas where the raids occurred have of course been severely impacted. A public school opened its doors to offer counseling for individuals affected by the raids, including many children whose family members, including parents, were detained.  A protest and vigil were held shortly after the raids. Some neighbors also voiced concerns about the economic impact that the raids will have on these small rural communities.

Legal Battle over the Status of DACA Continues Amidst Legislative Inaction

On August 3, a federal judge in D.C. vacated the government’s rescission of the DACA program. This means that the government may soon have to start accepting new DACA applications, in addition to processing renewals, which is currently required pursuant to previous orders by judges in California and New York. The D.C. judge’s order will go into effect on August 23 unless the U.S. government obtains a stay of the order by that date. In the meantime, a case challenging DACA is currently being litigated in Texas and could result in a judge ruling that DACA must be terminated and that the government must stop receiving applications. If that happens, there could be contradictory orders regarding DACA from different courts in the country. Any conflicting court decisions would need to be appealed and may ultimately end up before the Supreme Court, though the timeline for a potential Supreme Court decision still remains unclear.  This uncertainty is weighing heavily on Dreamers as they continue to plan their futures. For a full summary of ongoing litigation related to DACA, please see this chart prepared by the National Immigration Law Center (NILC).

Update on Farmworker Health and Safety

Court Orders EPA To Ban Pesticide Chlorpyrifos Within 60 Days

In a significant victory for farmworkers, public health and the environment, on August 9 the 9th Circuit Court of Appeals ordered the EPA to ban the highly toxic pesticide chlorpyrifos within 60 days. The ruling was the result of a lawsuit brought by Earthjustice and various other advocacy groups. Farmworker Justice was a plaintiff in the lawsuit.  As has been noted in previous FJ updates, the EPA had been set to ban chlorpyrifos, which has been linked to neurodevelopmental damage in children, but former EPA Administrator Scott Pruitt decided not to ban the pesticide after meeting with agrochemical industry representatives.

As stated by Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, farmworkers and their families have needlessly suffered from exposure to chlorpyrifos for far too long. Chlorpyrifos is currently used in over 50 different crops, including corn, soybeans, fruit and nut trees, and broccoli. Corteva, the agricultural division of DowDuPont, issued a statement soon after the ruling calling for an appeal to the decision. Crop Life America, another major manufacturer of the pesticide, has also called for an appeal of the ruling. The EPA has stated that it is reviewing the decision and has not yet decided whether it will appeal the ban.

NPR Highlights Rural Housing Crisis

A recent NPR report highlights the lack of adequate, affordable housing in rural areas of the U.S. The article focuses on a small Nebraska town and the lack of adequate housing for workers in a variety of industries, but does not mention farmworkers. However, the general scarcity of housing in rural areas often makes it even harder for farmworkers to find safe and affordable places to live. This reality is part of the reason why it is so important to maintain crucial protections in the H-2A program that require employers to provide housing for workers.

July 30, 2018

Farmworker Justice Update: 07/27/18

New Goodlatte Bill Introduced but Not Voted on As House Congressional Recess Begins

On July 18, Rep. Goodlatte (VA) introduced yet another version of his anti-worker, anti-immigrant and anti-family agricultural guestworker bill. The new bill, the “AG and Legal Workforce Act,” HR 6417, includes Rep. Goodlatte’s “H-2C” guestworker program, which would replace the current H-2A temporary agricultural guestworker visa program.  The legislation also includes mandatory E-verify.  House leadership had promised to bring standalone legislation on agricultural guestworkers to a House vote before August recess, but that did not happen. The House recess starts today and Members will not return until September.

It remains to be seen whether the bill will be taken up once the House reconvenes.  Reportedly, the bill did not have enough votes to pass, however Members state that they will be working to try to get additional support for the bill during the recess. One of the main reasons for the bill’s lack of support was the opposition to the bill expressed by some grower groups, including Western Growers and the California Farm Bureau FederationThese groups are concerned about the bill’s touch-back provision, which requires current undocumented agricultural workers to “self-deport” to their home countries before returning as guestworkers. Employers fear this provision, coupled with the implementation of mandatory E-verify, will only serve to push workers deeper into the shadows.

Farmworker Justice opposes the new Goodlatte bill, as do many immigrant rights organizations. To add your organization to a broad sign-on letter opposing the Goodlatte bill, as well as calling for a solution for Dreamers and TPS holders, please click here – the deadline for sign-on is Tuesday, July 31. Farmworker Justicewill continue to work to oppose Goodlatte’s one-sided and anti-worker proposal, while also monitoring potential regulatory changes to the H-2A program.

USDA Announces Guidelines for Including H-2A Workers in Farmworker Housing

On July 10, the U.S. Department of Agriculture (USDA) announced new internal guidance on the use of Section 514 farmworker housing. This new guidance is the result of an amendment included in the FY 2018 appropriations bill which extended use of the program to persons legally admitted to the United States and authorized to work in agriculture, expanding the definition of farm laborers eligible for the program. This change means that H-2A workers may now be eligible for this housing. Though further revisions will be made to the relevant regulations in order to conform to the statutory changes, USDA offices have been advised to include H-2A workers in the program.

The internal guidelines state that “under no circumstance” may any tenants in USDA-financed housing be displaced as a result of the change. However, the change is concerning because, as stated by Farmworker Justice President Bruce Goldstein in a Politico Agriculture update, the change is likely to encourage more employers to participate in the H-2A guest worker program and spread thin housing subsidies that can’t afford to be stretched. Any available subsidies to developfarmworker housing should be used to address the critical shortage of housing for U.S. farmworkers and their families.

House DHS FY 2019 Appropriations Bill Deeply Flawed

Newhouse H-2A Expansion Rider included in House DHS Appropriations bill

On July 25, Rep. Newhouse (WA) offered an amendment to the FY 2019 House Department of Homeland Security (DHS) appropriations bill which authorizes the expansion of H-2A to all agriculture, regardless of whether such work is seasonal. The amendment was adopted by voice vote.  The amendment is similar to one that he offered in FY 2018 which eliminated the seasonality requirement of the H-2A program. The FY 2018 Newhouse DHS amendment was ultimately not included in the final FY 2018 omnibus appropriations bill. Farmworker Justice opposes Newhouse’s year-round rider and will work to try to prevent it from being included in the final FY 2019 appropriations bill.

As detailed in a previous FJ update, Rep. Newhouse also introduced an amendment to the FY 2019 House Agriculture appropriations bill that would establish a new online platform for the processing and adjudication of H-2A petitions, to be run by the U.S. Department of Agriculture (USDA). This amendment was adopted and added to the House USDA appropriations bill. Farmworker Justice is also concerned about the potential inclusion of this amendment in the final FY 2019 appropriations bill, as the rider creates a great deal of uncertainty about what kind of oversight may be included should USDA run the application process.  USDA does not have the required expertise regarding administering guestworker programs and has historically viewed growers as their constituents instead of workers. 

Immigrant Rights Advocates Condemn FY 2019 DHS Appropriations Bill 

A coalition of immigrant rights groups, named the #DefundHate campaign, condemned the FY 2019 DHS appropriations bill that was voted on July 25. The bill includes $5 billion for construction of a border wall, as well as funding to expand detention centers and hire additional immigration officers. If included in the final FY 2019 appropriations bill, these funds would be used to further terrorize immigrant families, while lacking accountability for DHS’ fiscally irresponsible and morally reprehensible policies, including family separation. 

U.S. Government Misses Family Reunification Deadline

Pursuant to a court order, U.S. government officials had until yesterday (July 26) to reunite parents and children separated under the government's “zero-tolerance” family separation policy. Only about half of the approximately 2,500 children have been reunited with their parents. Hundreds of parents have already been deported without their children, making the prospect of future reunification uncertain. According to the ACLU, which is litigating the case, some parents were misled into agreeing to their deportation and/or relinquishing their rights to be reunited with their childrenImmigrantrefugee, and faith organizations have condemned the government’s actions and are continuing their work to provide guidance and relief to the affected families. 

FJ Opposes Nomination of Brett Kavanaugh for Supreme Court Justice

Farmworker Justice joined over 100 national organizations in a letter to Senators led by The Leadership Conference opposing the nomination of Brett Kavanaugh for the Supreme CourtKavanaugh was nominated by President Trump earlier this month. Of particular concern to farmworkers is Kavanaugh’s hostility to workers’ rights, anti-immigrant views, and undermining of environmental protections, each of which is detailed in the letter. A contentious confirmation process for Kavanaugh will likely take place in the U.S. Senate this fall. 

Milk with Dignity Campaign

 A recent Associated Press (AP) article highlights the success of the “Milk with Dignity” campaign. The agreement, led by farmworker advocate organization Migrant Justice, was signed by Ben & Jerry’s last fall. Under the agreement, Ben & Jerry’s pays a premium to farmers who agree to follow certain labor and housing standards. Approximately 70 farms employing 250 farmworkers are currently involved in the program, which is the first of its kind for the dairy industry.

Update on Farmworker Health and Safety

Farmworker Heat Stress Death in Nebraska

Farmworker Justice would like to extend its condolences to the family of Cruz Urias Beltran, a 52-year old farmworker who died earlier this month as a result of heat stroke. Urias Beltran went missing while detasseling corn in hundred-degree heat and was later found about 100 feet from the edge of a corn field. This recent tragedy once again highlights the need for protections to prevent heat stress, including the requirement for employers to provide access to drinking water, rest and shade when working in high temperatures, as well as adequate training for farmworkers to be able to identify and prevent heat stress.  

Public Citizen, FJ and Others Petition for Federal Heat Stress Standard

On July 17, Public Citizen, along with a coalition of over 200 individuals and groups including Farmworker Justice, filed a petition to the Occupational Safety and Health Administration (OSHA) asking for a federal standard to protect workers from heat stress. The danger of heat stress is particularly prevalent for farmworkers and will likely continue to grow as climate change impacts daily temperatures. The petition calls for a standard modeled after criteria set by the National Institute for Occupational Safety and Health (NIOSH).

Grain Elevator Explosion Will Not Be Investigated by OSHA Because of Small Farm Exemption

OSHA will not be investigating a recent grain elevator explosion that resulted in the death of a worker. U.S. law exempts farms with fewer than 11 non-family employees from OSHA’s purview, so the farm where the incident occurred does not qualify. The worker, Maurice Kellogg, suffered severe burns when the grain elevator exploded on May 29 and later died of his injuries. He was 55 years old and had been an agricultural worker for over 30 years. Farmworker Justice extends its condolences to his family. The exact cause of the explosion remains unknown.

FJ Developing Spanish Language Grain Safety Materials

Service providers have seen an increase over the last few years of Spanish-speaking workers on agricultural entities that produce, transport and handle grain. Currently, very few materials exist in Spanish to address grain safety protocol among grain workers. Grain handling incidents often result from improper interactions with grain processing and transporting equipment, improperly cleaned work areas, or entering untrained into grain bins and storage areas. Migratory or guest workers may be less likely to ask for the necessary training or protective equipment to complete these dangerous tasks. The changing nature of work on farms where grain is handled, including work on smaller OSHA-exempt farms, may trend towards more workers with limited English proficiency becoming involved in grain handling activities. Farmworker Justice and Indiana Legal Services have partnered to produce a series of Spanish language materials on grain handling safety. If you are interested in learning more about these materials, please contact FJ’s Health and Safety Project Coordinator, Madeline Ramey, at [email protected].

Pesticide Executive Nominated for Top USDA Post

President Trump recently nominated Scott Hutchins, a former pesticide executive for Dow Chemical, for the post of Under Secretary of Agriculture for Research, Education and Economics, which is the chief scientist position at the USDA. If approved by the Senate, Hutchins would be the third Dow Chemical executive to be assigned to a USDA post. Dow Chemical likely played a significant role in former EPA Administrator Scott Pruitt’s decision to reverse plans to ban the toxic pesticide chlorpyrifos. This latest nomination highlights the power of industrial agricultural interests in the current Administration, with negative impacts for both farmworkers and the environment. 

EPA Hearing on Use of Science in Regulations

Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, recently testified before the EPA on a proposed rule that would weaken the role of science in developing EPA policy. The proposed rule, entitled “Strengthening Transparency in Regulatory Science,” would require revealing private health data in public health scientific studies, making it less likely that the public would participate in these essential studies. Farmworker Justice opposes the rule because it would deter farmworkers from participating in scientific studies, and it would prohibit EPA from considering credible scientific evidence about the dangers farmworkers face, including exposure to pesticides. The public comment period for the rule ends on August 16, 2018.

“Skimpy Health Plans” and Farmworkers

The Center on Budget and Policy Priorities (CBPP) recently published a paper entitled “Expanding Skimpy Health Plans is the Wrong Solution for Uninsured Farmers and Farm Workers.” The paper details the negative impact association health plans and short term health plans will have on health insurance and health care access for farmworkers and farmers. At the state and federal level, policies have been proposed (and in some cases enacted) to expand access to “skimpy health plans” that are exempt from many of the ACA’s consumer protections. Farmers are often cited as the beneficiaries of these plans; in Iowa and North Carolina, expansion of skimpy plans is supported by the state Farm Bureaus. However, due to their low incomes, farmworkers may be eligible for better, more affordable coverage through the ACA’s marketplace or Medicaid. Skimpy plans, though they may seem affordable for low-income farmers and farmworkers, often have very high deductibles and limits on benefits. CBPP cites data from the 2016 American Community Survey and the 2014 National Agricultural Workers Survey. More information and analysis about association and short-term health plans can be found on the CBPP website

Cuts to Navigator Funding

On July 10, the Centers for Medicare and Medicaid Services (CMS) announced that they were cutting funding for navigators for the 2019 plan year from $36 million last year to $10 million. This represents a severe reduction in Navigator funding of nearly 90% from 2016 funding levels. CMS justified this funding reduction by stating that navigators only accounted for 1% of enrollees in the marketplace. However, as outlined in a Kaiser Family Foundation data note published July 17, the data cited by CMS likely underestimates the number of navigator-assisted enrollments. Further, the role of navigators is not limited to enrollment. Navigators also provide education to consumers, answer questions about health insurance, and support consumers post-enrollment. In farmworker communities, navigators play a crucial role to educate and enroll workers in health insurance. Awareness about the marketplaces remains low. In addition, recent changes in the ACA, specifically the elimination of the mandate penalty in 2019, create additional confusion. This reduction in funding further weakens the ACA, reversing any gains in health insurance coverage experienced by farmworker communities. 

 

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)