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October 22, 2018

H-2A FY 2018 4Q Data Now Available

           The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently released H-2A program data for the fourth quarter of FY 2018. There were a total of 242,762 H-2A positions certified for all of FY 2018, an approximately 20% increase from FY 2017. This latest data is in line with the overall trend of exponential growth in the use of the H-2A temporary agricultural worker visa program in the last decade. The states of Georgia, Florida, Washington, North Carolina and California had the highest number of positions certified, accounting for over half of all positions.

Washington State Considering H-2A Filing Fees for Employers

           In response to the exponential growth of the H-2A program, as well as a lack of adequate resources from DOL to enforce the program and carry out its other program responsibilities, the Washington Employment Security Department is proposing to charge employers for their H-2A applications. Under the proposal, the department would charge employers $1,000 to use the H-2A program, plus an additional $100 per worker for the first thousand workers and $50 per worker after that. The Department estimates that the fees would raise approximately $3 million.

Settlement Reached in Washington H-2A Worker Retaliation Case

           Columbia Legal Services recently announced a settlement agreement between 18 H-2A workers and Familias Unidas por la Justicia (an agricultural workers’ union in Washington representing H-2A workers) and Larson Orchards. The settlement resulted from a lawsuit brought by the workers against Larson Orchards after they were retaliated against for participating in a strike in 2017. In spite of a written agreement prohibiting retaliation, the workers were not re-hired for the 2018 season. The settlement includes $275,800 with specific payments directly to the workers as well as a promise by Larson Orchards to include the workers on its list of preferred workers in 2019.

Grower Fined for Retaliating Against Workers Who Raised Workplace Safety Concerns

           The California Agricultural Labor Relations Board recently found that a Coachella Valley date grower illegally fired four workers after they voiced concerns about workplace conditions. The grower agreed to settle the matter without admitting liability. As part of the settlement, the company, KR Thermal, will re-hire the workers and pay them approximately $40,000 in lost wages. Charges were brought by the workers in 2017 alleging that they were fired after they expressed concerns over the safety of date harvesting equipment, a lack of functioning restrooms and other issues. The company employed the workers through farm labor contractor Desert Harvest and has now stopped using the labor contractor. A KR Thermal representative expressed that the labor contractor should be the one held accountable, while the labor contractor claimed that the grower was solely responsible. Under the CA Agricultural Labor Relations Act, an employer is responsible for the acts of a labor contractor.

DOJ Settles Immigration Discrimination Case with Poultry Company

           On October 9, the Department of Justice (DOJ) announced it had reached a settlement with Mar-Jac Poultry, Inc., a Georgia poultry processing company. Under the settlement agreement, Mar-Jac was assessed a civil penalty of $190,000. According to a complaint filed in 2011, Mar-Jac Poultry routinely required work-authorized non-U.S. citizens to present certain documents to prove their work authorization, but did not require similar documents from U.S. citizen employees. The Immigration and Nationality Act (INA) prohibits employers from subjecting employees to unnecessary documentary demands based on their citizenship status or national origin. The Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. IER’s worker hotline can be reached at 1-800-255-7688.

Rep. McCarthy Introduces Draconian Immigration Bill

           House Majority Leader Kevin McCarthy (R-CA) recently introduced a draconian anti-immigrant bill, the “Build the Wall, Enforce the Law Act of 2018” H.R. 7059.  Rep. McCarthy is hoping to lead the GOP conference next year as speaker or minority leader after the retirement of current Speaker Paul Ryan (WI). Other Republican representatives angling for the leadership role include Jim Jordan (OH) and Majority Whip Steve Scalise (LA). Among the McCarthy bill’s terrible provisions are over $20 billion in funds for the building of a border wall and billions more in funding to incarcerate families, children and asylum seekers indefinitely and without due process.

Senate Strikes Deal on Judicial Appointments, Starts Early Recess  

           The Senate went into early recess last week. It was originally scheduled to be in session until the end of October and was planning to spend the bulk of that time on judicial confirmations. Democratic leadership expected fifteen judicial nominations to be approved given the Republican majority in the Senate, and made the decision to agree to all the appointments and adjourn early to focus on vulnerable seats in the upcoming mid-term elections. With this latest round of confirmations, the Trump Administration has confirmed a total of 84 judges, including two Supreme Court justices. Various civil rights groups criticized the Senate deal, particularly given its timing after the highly controversial confirmation of Supreme Court Justice Brett Kavanaugh. The House already adjourned last month, and like the Senate, is not set to return until after the November 6 mid-term election.

 Farmworker Health and Safety

Public Charge Rule Posted in Federal Register

          On October 10, the Department of Homeland Security (DHS) posted its proposed rule on public charge. The proposed rule would drastically change how public charge determinations are made when individuals apply to enter the U.S, extend or change their non-immigrant visa (including H-2A and H-2B status), or adjust to lawful permanent resident (LPR) status. FJ’s statement on proposed changes to public charge can be found on our website. In the next few weeks, FJ will share template comments that can be modified by organizations. We encourage organizations to submit their own comments that include stories about the rule’s potential impact on the farmworker communities you serve. The comment period is open until December 10. FJ is a member of the Protecting Immigrant Families campaign and is supporting efforts to ensure a robust response to the proposed public charge rule. Contact Alexis Guild, FJ’s Senior Health Policy Analyst, at [email protected] for more information.

ACA Open Enrollment Begins November 1

          The 2019 open enrollment period for the health insurance marketplace begins on November 1.  In-person assistance is available to help consumers enroll and/or to answer any questions about their health insurance. Subsidies to lower the cost of health insurance continue to be available to consumers with a household income up to 400% FPL (federal poverty level). There will no longer be a penalty for not having health insurance in 2019. In most states, open enrollment ends December 15. You can find more information about open enrollment at healthcare.gov. FJ’s Affordable Care Act (ACA) guides for workers can be found in our resource center.  

Trump Administration Increases Poultry Line Speeds

           Labor, consumer and animal rights groups have decried the Trump Administration’s recent decision to allow faster speeds for poultry-processing plants. Plants will be able to obtain waivers to process up to 175 birds per minute, up from the previous limit of 140 birds per minute. Injury rates for poultry workers are 60% higher than the national average for all private industry, and line speeds play a role in the rate of injuries. The typical pay for a poultry-processing worker is about $25,000 a year, and the workforce is increasingly composed of immigrants. Earlier this year, the Trump Administration also proposed eliminating the current limits for hog processing line speeds, a proposal which has similarly received strong opposition from food safety and labor groups.

October 05, 2018

Farmworker Justice Update: 10/04/18

President Signs FY 2019 Appropriations Package, Including CR for Various Pending Bills

On September 28, President Trump signed a spending package for FY 2019, which began October 1. The package includes full-year funding for various programs, such as defense, education, health and labor. It also includes a short-term continuing resolution (CR) lasting through December 7 for other remaining appropriations bills, meaning these remaining bills were simply extended from the previous year. The appropriations bills for agriculture and homeland security are among those included in the CR. As noted in previous FJ updates, each of these two proposed FY 2019 appropriations bills has troubling language regarding the H-2A temporary agricultural worker visa program. These provisions may still be included in the final FY 2019 appropriations bills. FJ will continue to monitor these bills.

Farm Bill Lapses After Congress is Unable to Reach Agreement

Another bill facing a September 30 deadline was the Farm Bill, which expired on this date after Congress was unable to reach a consensus for reauthorization. One of the main points of disagreement between the House and Senate was a House provision to attach work requirements to the Supplemental Nutrition Assistance Program (SNAP). FJ is also concerned by an attempt by the House to include the Pesticide Registration Improvement Act (PRIA) in the Farm Bill without key safety protections for farmworkers that were included in the Senate version of PRIA. FJ will continue to advocate for the House to pass the Senate version of PRIA as a standalone bill, in order to ensure both certainty for the pesticide registration program and adequate protections for farmworkers. The House is currently in recess until after the November 6 midterm elections. Many representatives will be back in their home districts campaigning during the month of October.

Canada Joins the U.S. and Mexico in New North American Trade Deal

On September 30, the United States, Mexico and Canada finalized a proposed new North American free trade agreement between the three countries. The new agreement, which would substitute the current North American Free Trade Agreement (NAFTA), is called the United States-Mexico-Canada Agreement, or USMCA. Among the multiple changes to NAFTA in the new agreement is the opening of the Canadian market to more U.S. dairy products, which was one of the most contentious issues in the negotiations between the U.S. and Canada.  The new agreement includes several labor protections that, under NAFTA, were placed in a “side agreement” called the North American Agreement on Labor Cooperation. Farmworker Justice and others have sought to enforce these protections for farmworkers in the U.S. The new agreement also includes a specific section focused on improving the rights to organize unions and engage in collective bargaining in Mexico. For more information, the full agreement is available at the Office of the U.S. Trade Representative’s website, including the agreement’s chapter on labor (Chapter 23).  The agreement still has to be approved internally in each of the three countries before it can go into effect. We will be providing further analysis at a later date.

Federal Judge Temporarily Blocks TPS Termination for Four Countries

On October 3, a federal judge in California blocked the Trump Administration’s decision to terminate temporary protected status (TPS) for individuals from Haiti, El Salvador, Nicaragua and Sudan. Approximately 300,000 individuals have been granted relief by the order, which resulted from a class action lawsuit alleging that the Administration’s decision to end TPS for these countries was in violation of the Administrative Procedures Act and was driven by racial animus. As a result of the decision, DHS is prohibited from terminating TPS for these countries pending the outcome of the case, unless there is an adverse decision on appeal. There are currently various other ongoing lawsuits regarding the Administration’s decision to terminate TPS for these countries, as well as a lawsuit related to the termination of TPS for Honduras.

Legal Victory in North Carolina for Farmworker Bargaining Rights

On September 20, a federal court in North Carolina issued an injunction against the North Carolina Farm Act of 2017, which sought to limit farmworkers’ rights to unionize and bargain collectively. The NC Farm Act was primarily sponsored by a NC state senator who is also a farm owner and had been sued for wage theft by his employees, with the help of the Farm Labor Organizing Committee (FLOC), North Carolina’s only farmworker union. The law prevents farmworkers and companies from agreeing to have union dues deducted from paychecks.  It also prevents settlements of lawsuits against a farm from including any agreements with an agricultural labor union. The Farm Act was challenged by FLOC, two individual farmworkers and a coalition of civil rights groups on the basis that it intentionally discriminates against farmworkers, more than 90% of whom are Latino. The court found that the Farm Act likely violates farmworkers’ Fourteenth Amendment right to equal protection and blocked its implementation.

Farmworkers Extremely Vulnerable During Hurricanes

As detailed in this Atlantic piece, farmworkers face unique challenges as the impact of a hurricane is exacerbated by their low wages, the broken immigration system and isolation. A recent Buzzfeed article recounts the disturbing story of a group of H-2A workers whose housing flooded during Hurricane Florence and whose requests for rescue were ignored. The workers were located in an isolated migrant labor camp in Jones County, in eastern North Carolina. When floodwaters started rising, the workers called 911. Although emergency crews were initially dispatched, the rescue was called off because the farm owner told authorities that the workers were fine. The workers reached out to local advocates, who also contacted 911 on their behalf,. The workers were eventually rescued by an employee of the North Carolina Growers Association and taken to a nearby shelter. They were thankfully unharmed. However, this story illustrates the vulnerability of H-2A workers and the extreme level of control that employers in the program have over fellow human beings. It is particularly absurd that emergency crews relied on the employers’ assessment of the situation rather than on the individuals actually calling for help.

Update on Farmworker Health and Safety

Public Charge Rule Text Released by DHS

On September 22, the Department of Homeland Security (DHS) released text of a proposed public charge rule; however, the proposed rule still has not been officially published for notice and comment. This rule would drastically expand the circumstances under which a person can be deemed a public charge. Use of benefits such as Medicaid and SNAP as well as a household income below 125% of FPL would be considered heavily weighed negative factors in an individual’s public charge determination. The proposed changes would make it more difficult for low-income farmworkers to enter the U.S. or adjust to Lawful Permanent Resident (green card) status. FJ condemns the proposed changes. Our statement can be found on our website. Shortly after the proposed rule is officially published in the Federal Register, FJ will share template comments with our network. We encourage everyone to submit comments and share stories about the rule’s impact on farmworker families in your community. For more information, please contact FJ’s Senior Health Policy Analyst, Alexis Guild, at [email protected]. FJ is also a member of the Protecting Immigrant Families campaign, which provides analysis and advocacy on this issue.

EPA Asks Court to Rehear Chlorpyrifos Case

On September 24, the U.S. Environmental Protection Agency (EPA) asked the Ninth Circuit Court of Appeals for a new hearing regarding the pesticide chlorpyrifos. As detailed in previous FJ updates, the Court had issued an order in August requiring the EPA to ban chlorpyrifos within 60 days, in accordance with the EPA’s own scientific evidence. The EPA’s request for a rehearing means yet another delay for the protection of public health, a situation which will particularly impact farmworkers and their children. FJ is one of the plaintiffs in the case.

Removal of EPA Child Health Expert Raises Concerns about Office’s Future

Last week, the EPA unexpectedly placed the director of the agency’s Office of Children’s Health Protection (OCHP), Ruth Etzel, on administrative leave. Many advocates are concerned that this decision might signal an elimination or weakening of the office as a whole. The EPA OCHP was formed in 1997, based on mounting scientific evidence that children and infants are uniquely sensitive to exposure to toxic chemicals such as pesticides. FJ believes that the OCHP plays a vital role in the protection of children, particularly farmworker children, from the negative health effects of exposure to pesticides. Its work should continue to be supported and advanced by the EPA.

Farmworker Justice Wine, Jazz & Award Reception

FJ’s annual Wine, Jazz and Award Reception will be held October 10 at the Beacon Hotel in downtown Washington, D.C. This year we will present an award to Lupe Martinez, CEO of UMOS, the Wisconsin-based nonprofit organization, who also is chair of the National Farmworker Alliance, and Board Member of Farmworker Justice.  Sponsorships and tickets are available on Farmworker Justice’s website event page. Please join us!

 

September 24, 2018

Farmworker Justice (FJ) condemns the Trump Administration’s proposed changes to immigration policy regarding the “public charge” requirement that would deny visas and permanent resident status, and ultimately U.S. citizenship, to low-wage immigrant workers.  

 The proposed rule drastically expands the public benefit programs that would be considered in a public charge determination, including SNAP, Medicaid, and housing assistance. It also imposes an income test of 125% of the Federal Poverty Level ($15,175 for a single individual) under which an immigrant who earns below that income will find it much more difficult to enter the U.S. or adjust his or her status.

Farmworkers and other low-wage immigrant workers will be disproportionately harmed by this rule. Farmworkers’ wages are among the lowest of any occupation and their poverty rates are substantially higher than the national average. Instead of accessing programs that they and their families are already eligible for, farmworkers will be forced to make impossible choices about their health and well-being and will be driven further into the margins of the economy.

“The Administration would punish our farmworker families who earn low wages while working long hours in dangerous conditions to produce our food,” said Bruce Goldstein, President of Farmworker Justice, a national advocacy organization.  He added, “Farmworker Justice and our allies advocate many policy solutions that would help farmworkers improve their wage rates and reduce their poverty rates.”   

Our country thrives when we support and value the contributions of farmworkers and other immigrant communities. Farmworker Justice will work with advocates across the country to oppose this rule. We encourage everyone to share stories and, once the proposed rule is published, submit comments.

More information about public charge can be found on the Protecting Immigrant Families website. FJ will keep our networks posted on any developments.  For more information, you may contact Alexis Guild, Senior Health Policy Analyst, Farmworker Justice, (202) 372-7422, [email protected].

Farmworker Justice

www.farmworkerjustice.org

Sept. 24, 2018

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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)