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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. 

 

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.

 

July 06, 2018

Farmworker Justice Update: 07/06/18

Sen. Harris and Rep. Grijalva Introduce Overtime Bill for Farmworkers

On June 25, the 80th anniversary of the Fair Labor Standards Act (FLSA), Sen. Harris (CA) and Rep. Grijalva (AZ) introduced the “Fairness for Farm Workers Act” (S 3131/HR 6230), which would amend the FLSA to include agricultural workers in its overtime provisions.  It would also remove most of the remaining exclusions of farmworkers from the minimum wage. As stated by Sen. Harris, the bill “is a matter of basic fairness and justice.” The bill has 9 original co-sponsors in the Senate and 51 original co-sponsors in the House. Farmworker Justice strongly supports the Fairness for Farm Workers Act, as do over 100 labor and civil rights organizations. More information about the legislation, including a summary and a factsheet, are available on our website.

On June 21, Members of the House sponsored a briefing on FLSA’s 80-year history. Speakers included FJ’s Bruce Goldstein as well as members of Congress and representatives from the Center for American Progress, the National Employment Law Project, the Restaurant Opportunities Center, the National Child Labor Coalition and labor unions.  In addition to FLSA’s exclusions of farmworkers from overtime and other protections, Bruce discussed the challenges posed to enforcement of the minimum wage due to farm labor contracting, mandatory individual arbitration and workers’ fear of retaliation.

Second House Vote on Immigration Fails, Future Action on Immigration Uncertain  

On June 27, the House of Representatives voted on the “Border Security and Immigration Reform Act of 2018,” HR 6136, known colloquially as the Ryan “compromise” immigration bill. The bill failed by a vote of 121-301. Although Rep. Goodlatte submitted a proposed amendment to the Ryan bill containing his “Agricultural Guestworker Act” (AGA), the amendment was ultimately not included in the bill. However, House Republican leadership has reportedly promised to bring a  bill related to agricultural workers to a vote before the August recess. That bill’s terms are likely to be based on the Goodlatte AGA. The issue of family separation, discussed in more detail below, is another topic that may be the focus of Congressional action on immigration in the weeks to come.

California Judge Issues Family Separation Injunction

On June 26, a federal judge in California issued an injunction ordering the Trump administration to stop separating families at the border. The injunction also mandates that separated children under five (5) must be reunited with their parents within 14 days (by July 10), and all other children must be reunited with their parents within 30 days (by July 26).  The judge’s order also states that adults may not be deported from the U.S. without their children unless they “affirmatively, knowingly, and voluntarily decline to be reunited.” In spite of the order, there are recent concerning reports that immigration agents are forcing parents to choose between leaving the country with or without their children in an attempt to coerce parents to drop their asylum claims.

ICE Raids May Further Silence Undocumented Workers

A recent immigration raid in Ohio has renewed concerns that immigration enforcement may make it more difficult for workers to denounce unsafe workplace conditions. Last month’s raid in an Ohio meat processing plant occurred just a few weeks after the company was fined for failing to provide proper guards for one of its machines, which resulted in the death of a worker in December. As stated by FJ President Bruce Goldstein, many workers are too afraid of retaliation to challenge unfair or illegal conduct, especially in light of the increase in immigration enforcement.

USDA’s Legacy of Discrimination against Black Farmers

A recent article explores the history of discrimination against black farmers by the U.S. government, particularly the U.S. Department of Agriculture (USDA). There are approximately 44,000 black farmers in the U.S. today, making up less than 2% of the farmer population. By contrast, in 1920, black farmers made up approximately 14% of all farmers in the U.S. Advocates say this decrease is the result of active discrimination. For example, farmer Michael Stovall was repeatedly denied a USDA loan for lack of experience, despite the fact that his family had owned their farm for four generations. After more than a decade of litigation, Stovall was eventually awarded a settlement of $250,000. Stovall’s story is not unique. A class action brought against the USDA in 1999, Pigford v. Glickman, alleged racial discrimination and eventually resulted in payouts to over 80,000 individuals totaling more than a billion dollars. Currently, two of the biggest threats to black farm ownership include pressure from corporate farms to buy land for soybean and corn production and the ageing of black farmers without adequate estate planning to ensure the property stays in the family. More recently, Latino, Native American and women farmers sued the USDA for discrimination. Former USDA Secretary Vilsack established claims procedures and funds were set aside to pay successful claims.

Update on Farmworker Health and Safety

Farmworker Death from Heat Stress

Farmworker Justice expresses its condolences to the family of Miguel Angel Guzman Chavez, who died on June 21 from apparent heat stroke. Guzman Chavez, aged 24, had arrived in Georgia from Mexico on an H-2A temporary work visa just a few days earlier. He fell ill and collapsed while picking tomatoes. The temperature at the time was 95 degrees, with a heat index of up to 104 degrees. Several organizations are offering assistance to the family.

Need for Government Action to Prevent Heat Stress Deaths

Unfortunately, injuries and deaths from heat stress are not uncommon among farmworkers and yet they are almost always preventable. Farmworker Justice has sought federal safety standards to protect agricultural workers and is renewing our effort. In fact, Public Citizen, the United Farm Workers, and Farmworker Justice will soon petition the Occupational Safety and Health Administration (OSHA) to shield some of the most vulnerable U.S. populations, including farmworkers, by adopting heat stress protections. The petition will initiate the launch of a campaign to win a federal heat stress rule and encourage actions by state governments, as well as educate the public on the dangers of heat stress and the need to mitigate climate change. If your organization would like to sign on to the petition, please click here (the deadline for sign-on is July 10). For more information on this initiative, please contact FJ’s Director of Occupational & Environmental Health, Virginia Ruiz, at [email protected].  

Child Labor in Tobacco Fields

Recent articles in both The Guardian and The Atlantic detail the prevalence of child labor in the tobacco industry. Workers in tobacco fields are vulnerable to nicotine poisoning, known as green tobacco sickness, in addition to general health risks faced by farmworkers including heat stress, injuries and pesticide exposure. The lack of adequate child labor protections in agriculture, coupled with the broader exclusions of farmworkers from key labor protections, create a situation that is ripe for child labor. The widespread use of labor contractors in agriculture also exacerbates this issue, as farm operators claim ignorance regarding the presence of children in their fields or supply chains.   

Oral Arguments in Chlorpyrifos Case Set for July 9

On July 9, the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in a lawsuit against the Environmental Protection Agency (EPA) regarding the agency’s decision to reverse a planned ban of the pesticide chlorpyrifos. Farmworker Justice is a plaintiff in the case. Chlorpyrifos was banned for household use two decades ago, and the EPA was set to ban the chemical for agricultural use as well, based on the agency’s own science. However, EPA Administrator Scott Pruitt reversed course after pressure from Dow Chemical – the nation’s largest manufacturer of chlorpyrifos. The agency’s next safety review of chlorpyrifos is currently set for 2022.

EPA Administrator Scott Pruitt Resigns

On July 5, EPA Administrator Scott Pruitt tendered his resignation. Pruitt was facing a series of ethics scandals and federal investigations related to his use of taxpayer funds for first class travel, security and other expenses, as well as use of his position to try to secure a job for his wife, among various other controversies. Deputy Administrator Andrew Wheeler, a former coal industry lobbyist, will now be the acting EPA Administrator

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)