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February 03, 2020

 

DOL Releases New Joint Employer Rule  

On January 12, the Department of Labor (DOL) released a new final rule in the form of an interpretative regulation on joint employer liability under the Fair Labor Standards Act (FLSA). The new interpretation creates a four part test to assess whether a business should be considered a joint employer with another business. The purpose of the regulation is to narrow the circumstances under which joint employer status will be found. One of the consequences of this interpretation, if implemented, would be that where a larger business, such as a farming operation, uses a labor contractor to supervise workers, only the labor contractor would be found liable for violating child labor, minimum wage or overtime rules. This definition is a marked change from prior interpretations by the courts and by the DOL itself. 

Farmworker Justice filed extensive comments on behalf of itself and other organizations opposing the proposed changes. We expect that most federal courts would not follow this interpretation when workers sue to enforce their rights and seek joint employer liability.  However, the DOL will follow it in conducting its investigations and litigation under the FLSA, which will encourage some businesses to use abusive labor contractors. These changes do not affect a previous, and appropriate, joint employer interpretation issued by the DOL under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the principal federal employment law for farmworkers. 

Top USDA Civil Rights Official Leaves Agency

Effective January 31, the U.S. Department of Agriculture (USDA) deputy assistant secretary for civil rights, Naomi Earp, will leave the agency. Earp has only been at the job for a year. Earp faced criticism during a House hearing where a Representative accused her of mismanaging the office intended to be a champion for the underserved. Of the 300 civil rights complaints filed by employees in fiscal year 2019, only 2 resulted in a finding of wrongdoing. Additionally, Earp had made several controversial comments relating to alleged sexual harassment within USDA. Neither the agency nor President Trump has announced a successor yet.  

New Trade Deals Move Forward

China

On January 15, Trump signed phase one of a new trade deal with China. Among the new trade provisions is an agreement that China will purchase $32 billion in agricultural products over the next two years. The new deal has received criticism as it leaves two thirds of the tariffs on Chinese goods coming into the United States in place, which some describe as a hidden tax. Similarly, the phase 1 deal did not reduce the tariffs on U.S. agricultural goods going into China, which President Trump claims will come off in the Phase 2 deal. There is also the caveat that China will buy the goods “based on market conditions.” This worries some farmers who do not believe the market will change much under the new deal. USDA Secretary Sonny Perdue stated that the new China purchases would alleviate farmer’s current need for aid from the U.S. government to stay afloat.

USMCA

On January 16, the Senate passed the U.S.-Mexico-Canada Agreement (USMCA), which will replace the previous North American Free Trade Agreement (NAFTA). Some of the agreement’s new provisions expand the dairy market in Canada, and others demand that Mexico expand labor protections for workers, including migrants and women. Opponents of the bill, including some labor and environmental groups, think that the new deal does not go far enough in protecting workers and the environment. The bill passed through Congress with bipartisan support, with a vote of 89-10 in the Senate and 385-41 in the House. Trump has not signed the trade deal as of the writing of this update.

Temporary Restraining Order Placed on Part of New York Farmworker Rights Law

On December 30, 2019, a coalition of New York dairy and vegetable farmers filed a lawsuit against implementation of the “Farmworkers Fair Labor Practices Act,” a new state agricultural labor law that took effect on January 1. The new law gives New York farmworkers the right to unionize, be paid overtime pay (after 60 hours in a week) and take at least one day off per week for the first time in the state’s history. Gov. Cuomo signed the historic legislation in July 2019. The groups behind the lawsuit are not challenging the provisions that allow for overtime and at least one day off per week. Rather, they want clarification on the collective bargaining piece of the legislation, which they claim runs counter to federal law. The judge temporarily blocked one aspect of the collective bargaining law. As a result, for the time being, the right to unionize will not apply to supervisory personnel. There will be additional court proceedings in February.

New Colorado Overtime Rules Exclude Farmworkers

On January 22, the Colorado Department of Labor and Employment released new overtime rules extending overtime pay to additional occupations. However, little will change for farmworkers as agricultural employees are still exempt under both federal law and the new state rules. One positive change is that farmworkers now have a required 10 minute break for every 4 hours worked. The agency said it chose not to expand overtime to farmworkers because they are exempt under federal law.

 

Update on Farmworker Health and Safety

Public Charge Litigation Update

On January 27, the U.S. Supreme Court overturned a nationwide injunction by the 2nd Circuit Court of Appeals that had prevented the Trump administration from implementing its public charge rule. The Supreme Court’s 5-4 ruling means the rule could now go into effect although it remains unclear when the Administration will begin implementing it. Prior to the Supreme Court ruling, on January 8, the 2nd Circuit Court of Appeals in New York had denied the Administration's motion to stay (or temporarily lift) the New York District Court's nationwide injunction. FJ will continue to provide information as this process unfolds. The Protecting Immigrant Families (PIF) campaign has resources and messaging for community members around public charge. 

Under the Immigration and Nationality Act, the government may deny an application for immigration status to a person who “is likely at any time to become a public charge.” The new rule drastically changes the factors used to determine whether a person is “likely” to become a public charge in the future. It also changes the definition of “public charge.” The consequences are that many immigrants who contribute to our economy and support their families will be deemed unfairly to be a “public charge” and denied immigration status.  It is important, however, to understand what is in the rule and what is NOT in the rule, as described in our fact sheet.

ACA Open Enrollment Period for 2020 Ends

Open enrollment for healthcare.gov, the federal health insurance marketplace under the Affordable Care Act (ACA), ended in December 2019. According to the Centers for Medicare and Medicaid Services (CMS), approximately 8.3 million individuals selected or were automatically re-enrolled in health insurance plans. This total is slightly less than last year; however, there were more new enrollments than last year, despite cuts to outreach and in-person assistance/navigator programs and the repeal of the individual mandate. Data is not yet available for the state-based marketplaces (including California, Colorado, Connecticut, Massachusetts, New York, and Washington, among others). Final numbers should be available in February. 

Fifth Circuit Rules Against the ACA

On December 18, the Fifth Circuit ruled part of the Affordable Care Act unconstitutional and remanded the rest to the district court. The individual mandate was ruled unconstitutional and will no longer apply unless the Supreme Court overturns the ruling. However, the Fifth Circuit did not rule on whether the rest of the ACA withstands a constitutional test. Pro-ACA organizations consisting of the House of Representatives and a coalition of several states filed an appeal with the Supreme Court for an expedited hearing, but that request was denied on January 21. That decision means that the appeal will be heard in October 2020 at the earliest, pushing the final ruling past the upcoming November 2020 election.

States Debating Chlorpyrifos Ban

On January 20, a bill that would ban most uses of chlorpyrifos was introduced in the Washington legislature. Mint, onion and sweet corn growers would still be able to use the chemical under the bill. Other farmers could apply for an exemption, too, but they would have to alert neighbors prior to spraying and warn that exposure to chlorpyrifos could harm young children and fetuses. Sen. Christine Rolfes introduced the bill, SB 6518. The ban would begin January 1, 2021 for products with chlorpyrifos as the active ingredient. However, users have until December 31, 2025 to ask permission from the state to use chlorpyrifos with restrictions.

In Oregon, a pesticide working group met on January 23. During the meeting, a proposed bill was discussed for banning chlorpyrifos. The Oregon legislature has attempted to ban the chlorpyrifos in the past to no avail. The bill would work to ban the sale of chlorpyrifos over the next two years. PCUN and Oregon AFL-CIO are leading this bill. HB 4109 already has several sponsors and cosponsors, but has not been formally introduced.

The Maryland legislature will also consider a ban. The proposal has been introduced in past legislative sessions, and groups are hopeful that this year the legislature will take action. S.B. 300 and H.B. 229 will be heard in committee in February. Farmworker Justice has been assisting activists in Maryland and other states in this effort.  Farmworker Justice is also a plaintiff in federal litigation against the EPA for its refusal to ban chlorpyrifos.

December 12, 2019

 

Farmworker Justice thanks the Members of the House of Representatives who voted in favor of the Farm Workforce Modernization Act of 2019, HR 5038, which passed the House today.       

The Farm Workforce Modernization Act (FWMA) resulted from lengthy, complex negotiations led by Rep. Lofgren (D-CA), Chair of the Subcommittee on Immigration and Citizenship, and Rep. Newhouse (R-WA), a farmer and former Director of Washington State’s Department of Agriculture, and additional colleagues.  To help reach agreement, Members of Congress involved farmworker advocates, including the United Farm Workers and Farmworker Justice, as well as agricultural employer trade associations and other stakeholders. 

“Achieving compromise on complex, polarizing labor-management and immigration issues was possible because of the wide recognition that farmworkers are essential to our nation's food and agriculture systems,” said Bruce Goldstein, President of Farmworker Justice.  “Our nation’s immigration system is broken and results in great unfairness, as over one-half of the 2.4 million people who labor on our farms and ranches to feed us are undocumented immigrants.  This bill, despite shortcomings that are inevitable in any compromise, is a responsible effort to fix our broken immigration system and enable many farmworkers and their families to gain a greater measure of justice.”       

The large majority of the nation’s 2.4 million farmworkers are immigrants, and a majority lack authorized immigration status. Undocumented farmworkers and their family members live in fear of arrest, deportation and the breakup of their families. Many farmworkers are reluctant to challenge illegal or unfair treatment in their workplaces and their communities.  At times, they cannot go to work or their children’s school functions due to the presence of immigration enforcement agents.  “The country’s farms and our food system depend on immigrants, both documented and undocumented, and they deserve a greater measure of justice,” Goldstein added.

 The Farm Workforce Modernization Act bill provides a path to lawful permanent residency for undocumented farmworkers and their family members.  Removing the threat of immigration enforcement would help farmworker families and farming businesses. “With legal status, farmworkers would be better able to improve their wages and working conditions and seek enforcement when their limited labor rights are violated,” said Goldstein. These improvements would result in a more stable farm labor force and greater food safety and security to the benefit of employers, workers, and consumers.  The earned legalization program’s requirements are more rigorous, lengthy and expensive than we preferred, but are acceptable in the effort to reach a realistic, bipartisan compromise,  

The bill also would revise the existing H-2A agricultural guestworker program to address farmworker 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, claiming that the program is unduly expensive and bureaucratic.  “The bill’s lengthy provisions on the H-2A guestworker program include important new protections for U.S. and foreign farmworkers, as well as changes to address agricultural employers’ demands that Farmworker Justice has historically opposed,” said Goldstein. Compromise was necessary to achieve legislation that could become law and address serious harms imposed on farmworker families by our broken immigration system. 

Farmworker Justice supports the Farm Workforce Modernization Act of 2019 because it would help hundreds of thousands of farmworkers and their family members improve their lives.  Our fact sheet on the bill is available on our website’s Resource Center under Legislative Proposals/116th Congress.

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.

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.