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May 17, 2019

Farmworker Justice Update: 05/17/19

DOL Releases H-2A Second Quarter Data Showing Continued Growth

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently published data on the H-2A temporary agricultural worker visa program for the second quarter of FY 2019. The data shows that approximately 123,000 H-2A positions have been certified so far this fiscal year, a 14% increase over the same period in FY 2018.  In FY 2018, DOL approved a total of approximately 242,000 H-2A jobs.

NCAE Continues Attempts to Decrease Farmworker Wages

On April 30, the National Council of Agricultural Employers (NCAE) sent a letter petitioning the Department of Labor (DOL) to change its methodology for calculating the Adverse Effect Wage Rate (AEWR) for the H-2A program. As noted in previous updates, the NCAE filed a lawsuit earlier this year seeking to reverse the DOL’s implementation of the 2019 AEWRs. The lawsuit, Peri & Sons Farms, Inc. v. Acosta, was dismissed by a U.S. District Court judge in March based on the statute of limitations. On April 18, two weeks before sending the letter to the DOL, the NCAE filed an appeal in the Peri & Sons case. The appellant’s briefs are due next week. FJ is co-counsel for the United Farm Workers (UFW), which intervened in the case.

House Committee Hearings on the Agricultural Economy

The House Committee on Agriculture recently held two hearings on the state of the agricultural economy. One was focused generally on the farm economy, while the other focused specifically on the dairy industry. The hearing witnesses discussed a variety of factors including trade uncertainty and product pricing. Another factor that was highlighted in both hearings was the importance of immigrant labor to the agricultural economy. A few of the representatives present stressed the need to provide an immigration solution for the many undocumented workers who are currently doing agricultural work, such as in the Agricultural Worker Program Act of 2019, which FJ supports. However, some of the witnesses and representatives instead took the opportunity to call for weakening the existing protections in the H-2A temporary agricultural worker visa program, including an expansion to year-round industries such as dairy. As detailed in our fact sheet on the most recent H-2A year-round proposal, FJ opposes expanding the H-2A program to year-round jobs and supports opportunities for immigration status for any farmworkers needed in the future. 

Recent DOL Enforcement Actions against H-2A Employers

The Department of Labor (DOL) recently issued a decision against James Brady Sr. of Lebanon, Kentucky for violations of the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the H-2A visa program.  Brady, a tobacco farmer, paid his U.S. employees less than H-2A workers doing the same work. Among other violations, Brady also failed to provide the H-2A workers with free housing, transportation reimbursement, and three-quarters of the hours guaranteed in their work contracts. Brady was ordered to pay almost $92,000 in back wages as well as a civil money penalty of $115,000.

DOL also recently announced consent findings in a case against Earl Roy Farm of Louisiana LLC, a sweet potato farm based in Hessmer, Lousiana, for violations of the H-2A program’s requirements. Earl Roy Farm similarly paid U.S. workers lower wages than H-2A workers, failed to reimburse H-2A workers for their transportation and failed to provide three-fourths of the guaranteed work hours. Additionally, Earl Roy Farm unlawfully laid off U.S. workers. The company will pay approximately $70,000 in back wages in addition to more than $30,000 in civil money penalties.

Guardian Article on Abuses and Fraud in H-2A Recruitment

A recent article in The Guardian details abuse and fraud in the recruitment of Mexican workers who come to the U.S. on H-2A visas. Even though recruitment fees are illegal under the program, many recruiters charge workers, who do not disclose the fees for fear of losing their visas and/or being blacklisted. Workers who arrive at their jobs already indebted are then vulnerable to labor abuses and trafficking. The article highlights the power imbalance between H-2A workers and their employers, as well as the lack of clarity about who the actual employer is given the prevalence of recruiters and labor contractors.

Civil Eats Article on Farmworkers’ Labor Rights

A recent Civil Eats article details farmworkers’ historic exclusion from labor protections and extremely low unionization rate. It highlights various farmworker unions: the United Farm Workers (UFW), Pineros y Campesinos del Noroeste (PCUN) and the Farm Labor Organizing Committee (FLOC), as well as the work of Familias Unidas por la Justicia and the Rural Migrant Ministry. The article also references the New York Farmworker Fair Labor Practices Act, which would remedy farmworkers’ exclusion from collective bargaining rights, among various other provisions advancing farmworkers’ labor rights. FJ’s President Bruce Goldstein recently testified before the NY State Senate in favor of the bill.  

New Immigration Proposal Introduced by White House

Yesterday (May 16), President Trump announced a new immigration plan focused on increasing the militarization of the border, weakening asylum protections and overhauling the country’s legal immigration system in favor of a “merit” points system. The White House proposal does not specifically address agricultural workers despite the demand by agricultural employers and farmworkers for immigration reform. The proposal has been labeled “dead on arrival” from all sides of the immigration debate. Among many issues, the plan does not offer immigration status or other relief to Dreamers or TPS holders and similarly lacks a solution for the approximately 11 million undocumented individuals currently in the country. If ever enacted, the proposal would be extremely harmful for many reasons, including by preventing the unification of families. The proposal’s emphasis on granting immigration visas to highly educated individuals ignores the reality of who fills essential jobs in our economy.

Update on Farmworker Health and Safety

State Actions on Chlorpyrifos

In the absence of progress at the federal level, several states are taking steps to end the use of the pesticide chlorpyrifos in agriculture.  Last week, the California EPA announced that it was beginning the regulatory process to ban its use in that state, and a bill to take swifter action is pending in the California Senate. On April 30, the New York state legislature passed a bill to ban the pesticide, and the Oregon and Connecticut legislatures are considering similar bills. Hawaii was the first state to pass legislation banning the pesticide last year. As stated by FJ’s Director of Occupational and Environmental Health, Virginia Ruiz: “There’s momentum now, and people and policymakers are becoming better educated about chlorpyrifos.” As noted in previous FJ updates, chlorpyrifos is a highly toxic pesticide that is linked to neurodevelopmental damage in infants and children. EPA banned its residential use in 2000. In 2016, EPA scientists recommended cancelling remaining uses of the pesticide, but in March 2017, the Trump Administration allowed its continued use indefinitely. Last month, the Ninth Circuit Court of Appeals ordered the EPA to issue a final decision regarding chlorpyrifos by July 18, in response to litigation and administrative objections by farmworker and environmental groups, including FJ.   

Midwest Examples Highlight Lack of Pesticide Incident Reporting

A recent Harvest Public Media investigation highlights the lack of adequate state and national records on pesticide exposure incidents, based on information from the departments of agriculture in various Midwestern states including Colorado, Illinois, Iowa, Kansas, Missouri and Nebraska. Among the problems identified is that some departments do not track incidents at all while others do not distinguish between human and other types of exposures. There is also a lack of coordination between state agricultural, health and environmental agencies. At the federal level, as detailed in previous FJ updates, the Environmental Protection Agency (EPA) recently updated the Worker Protection Standard (WPS). However, even with some of the crucial improvements in this regulation, the EPA still has little ability to monitor their implementation and determine how frequently workers are actually exposed. The issue of pesticide drift is of particular concern, as this is one of the most common ways in which individuals can be exposed. The new version of the WPS includes a safety measure, called the “Application Exclusion Zone,” or AEZ, that seeks to address and prevent this risk. Unfortunately, however, the EPA recently announced that it plans to issue a proposed rule to reconsider the AEZ, potentially weakening its scope and impact. We do not yet know the specific contents of the proposed rule. If and when it is published, FJ will work to submit comments that stress the importance of preventing exposures for both workers and bystanders.  

CMS Finalizes 2020 Benefit and Payment Parameter Rule

On April 18, the Centers for Medicare and Medicaid Services (CMS) issued its final 2020 Benefit and Payment Parameter Rule. This rule, issued annually, sets standards for the Affordable Care Act health exchanges including plan benefits, tax credits and cost-sharing as well as consumer outreach/in-person assistance. Among its provisions, the final rule eliminated the requirement that navigators provide post-enrollment assistance and reduced the training requirements for navigators. Navigators will no longer be trained to provide post-enrollment assistance and will only receive general trainings on topics such as the needs of underserved and vulnerable populations. Among the many implications of this final rule, there will be fewer navigators who are properly trained to assist farmworkers and other hard-to-reach/vulnerable populations in health insurance enrollment. There are also concerns that the final rule will reduce affordability for low-income consumers due to changes related to the premium adjustment percentage. More information about the final rule can be found here.

House Votes on Bill that Would Restore Funding for ACA Outreach and Enrollment

Yesterday (May 16), the House of Representatives passed a bill that would restore funding for ACA outreach and enrollment. H.R. 987, the Marketing and Outreach Restoration to Empower (MORE) Health Education Act, will restore funding for outreach and education activities in Federally-Facilitated Exchanges (FFEs). It will also limit funding for outreach activities to ACA-compliant plans, barring outreach funds from being used to promote short-term health plans. Since 2017, there have been significant cuts to funding for ACA outreach and enrollment. The Congressional Budget Office (CBO) estimates that the MORE Act could lead to an additional 500,000 individuals enrolling in coverage. The bill is part of the House’s broader health care legislation to improve financial assistance and strengthen protections under the ACA.

Update on Texas v. U.S. Lawsuit to Stop Implementation of the ACA

The Fifth Circuit Court of Appeals will hold a hearing on Texas v. U.S. in July. A date has not yet been set but oral arguments are expected to take place the week of July 8. California’s Attorney General, Xavier Becerra, is leading a coalition of 21 attorneys general in defense of the constitutionality of the ACA. The Fifth Circuit granted Wisconsin’s request to withdraw from litigation, leaving 18 states, led by Texas, and two individuals as plaintiffs. A press release from Attorney General Becerra's office can be found here.

Please join us at the annual Farmworker Justice Awards Reception in Washington, D.C. on Thursday, June 13, 2019!  

May 07, 2019

Action Alert – Sign the Petition to the EPA and Congress to Stop Pesticide Poisoning of Farmworkers & Their Children

It’s wrong that farmworkers and their children continue to be exposed to the highly toxic pesticide chlorpyrifos. 

You can help right this wrong by signing the petition to ban agricultural use of chlorpyrifos.  We will send it to the Administrator of the Environmental Protection Agency (EPA), Andrew Wheeler, and key Members of Congress.  Our goal is 5,000 signers.

April 24, 2019

Farmworker Justice Update: 04/24/19

2017 Census of Agriculture Results

The U.S. Department of Agriculture recently released the results of its 2017 Census of Agriculture. The Census is conducted every five years and is meant to capture agricultural trends. With regard to farmer demographics, the average age of farm producers has continued to rise. Over 95% of farm producers are white whereas only about 3% are Hispanic, an interesting piece of data when you contrast it with the National Agricultural Workers Survey (NAWS)’ finding that more than 80% of farmworkers are Hispanic.

Another trend identified in the survey was a decline in the number of mid-size farms, while the number of both very small farms (sales of $2,500 or less) and very large farms (sales of $5 million or more) increased.  There are 2 million farms in the U.S., comprising 900 million acres of land. More than two thirds of all agricultural production was sold by fewer than 4% of U.S. farms. The top ten agricultural producing states were California, Iowa, Texas, Nebraska, Kansas, Minnesota, Illinois, North Carolina, Wisconsin and Indiana. The value of agricultural products sold from farms nationwide was $389 billion.  The 2017 market value of all agricultural products in some of the states known for labor-intensive products such as fruits, vegetables, horticulture and dairies include: California $45.2 billion; North Carolina $12.9 billion; Wisconsin $11.4 billion; Washington $9.6 billion; Florida $7.4 billion and Arizona $3.85 billion.

New York Farmworkers Fair Labor Practices Act

Celebrity chef Jose Andres and Broadway star Lin-Manuel Miranda, along with Hispanic Federation President Jose Calderon, recently penned an op-ed in support of New York’s proposed Farmworkers Fair Labor Practices Act. The bill has passed the New York State Assembly in past years but has not passed the Senate. As noted in the op-ed, the 2019 session must be different. The bill would remedy farmworkers’ exclusion from overtime pay, unemployment insurance, workers’ compensation and the right to bargain collectively. FJ President Bruce Goldstein will be testifying in favor of the bill in one of several legislative hearings that will be held across New York in the coming weeks. You can find more information on the bill, and how to support it, here.

Washington State House Passes State H-2A Office Bill

Earlier this month, the Washington State House of Representatives passed SB 5438, a bill that would establish an office within the state employment security department specifically tasked with monitoring the H-2A program. The bill had already passed in the state Senate. Unfortunately, the bill does not contain some of the provisions hoped for by farmworker advocates, including a fee charged to employers who use the program. As stated by Rosalinda Guillen, Executive Director of Community to Community Development, which has been advocating for the legislation: “this is not the original bill we wanted, but it is still a viable process that will help us fight for justice for farmworkers.”  Farmworker Justice has been working with groups in the state to address the failure of the U.S. Department of Labor and the state agency to carry out their obligations under the H-2A program, including issuing determinations of local prevailing wage rates. The legislation arose in part because the state labor agency sought additional resources to fulfill its obligations. You can find more information on the bill here, including the bill text.  The bill is awaiting signature from the Governor.

Nielsen Departure and DHS Shake-up

On April 5, President Trump announced the departure of Department of Homeland Security (DHS) Secretary Kirstjen Nielsen. As DHS Secretary, Nielsen oversaw the Administration’s family separation policy and other egregious actions.  Nielsen’s departure occurred shortly after Pres. Trump withdrew the nomination of Ron Vitiello to lead the Immigration and Customs Enforcement (ICE) agency because he wanted to go in “a tougher direction,” leading to concerns that there may be a staff overhaul underway led by immigration hard-liners such as Stephen Miller. For the time being, Kevin McAleenan is serving as DHS secretary. McAleenan was previously U.S. Customs and Border Protection (CBP) commissioner.   

DOL Publishes Proposed Rule on Joint Employment

 On April 9, the Department of Labor (DOL) published its proposed rule on joint employer status under the Fair Labor Standards Act (FLSA). DOL is proposing to narrow the test for determining when two businesses should be considered to jointly employ a worker.  The joint employment concept is especially important for farmworkers, many of whom are hired to work on farms through labor contractors. When wage theft occurs, in the past many growers denied that they were the “employer” for purposes of the minimum wage and other obligations.  FJ and other advocates have advocated and litigated to demonstrate that the FLSA’s broad definition of employment relationships encompasses joint employer status in many circumstances. Secretary of Labor Acosta is attempting to reverse a long series of court cases and interpretations via regulation. The joint employer standard was among the Obama-era federal regulations the Trump administration had targeted for change. The deadline for submitting comments to the proposed rule is June 10. FJ will be drafting comments to the proposed rule highlighting its potential impact on farmworkers.

Update on Farmworker Health and Safety

Court Orders EPA to Decide On Chlorpyrifos Ban within 90 Days

On April 19, the 9th Circuit Court of Appeals ordered the Environmental Protection Agency (EPA) to decide within 90 days whether to ban chlorpyrifos, a highly toxic pesticide. A 3-judge panel of the Court had ordered the EPA to ban the chemical last year, but the EPA appealed for a hearing by the full Court. The EPA had proposed to ban chlorpyrifos in 2016 based on its own scientific findings, but in 2017 then Administrator Scott Pruitt reversed the agency’s decision and said that the EPA would study the issue until 2022.  Now, the EPA must decide whether to allow continued use of the chemical in agriculture by mid-July.

OSHA Safety Enforcement Continues to Decline

A recent National Employment Law Project (NELP) report details how enforcement activity by the Occupational Safety and Health Administration (OSHA) declined in 2017 and further declined in 2018. This trend is evident by the decrease of the following types of inspections: hazards causing musculoskeletal disorders (ergonomics), heat safety, worker exposure to dangerous chemicals, and operations with combustible dust. Another factor contributing to the decrease in workplace safety enforcement is OSHA’s failure to fill vacant inspector positions in a timely manner, with the number of OSHA inspectors currently at a historic low. This decrease in safety enforcement is occurring amid an increase in the number of fatality and catastrophe investigations, suggesting workplaces are becoming increasingly more dangerous. Additionally, OSHA has drastically reduced its issuance of press releases about enforcement activities, which help to serve as deterrents to employers who might otherwise relax their safety efforts.

Health Policy Bulletin on Green Tobacco Sickness

FJ is pleased to share its Winter 2019 Health Policy Bulletin. The topic highlighted in the 2019 Health Policy Bulletin is Green Tobacco Sickness. You can go to our website to view and download the issue.

Latest News

May 21, 2019

For Immediate Release                                       Contact: Bruce Goldstein, Farmworker Justice

May 21, 2019                                                          202-800-2521

Farmworker Justice Statement on Mark-up of “Dream” and “Promise” Legislation

(Washington, DC)   Tomorrow (May 22), the House Judiciary Committee is scheduled to mark-up two important pieces of legislation:  H.R. 2820, the “Dream Act of 2019” and H.R. 2821, the “American Promise Act of 2019.” These two bills are based on the “Dream and Promise Act of 2019,” H.R. 6.

Together, they would provide immigration protections and a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients.

Farmworker Justice President Bruce Goldstein stated: “It is imperative that Congress pass legislation securing permanent protections for Dreamers, TPS holders, and DED recipients. By eliminating the constant fear of deportation, this legislation would reduce the stress placed on them and their families and empower them in their workplaces, including our nation’s farms and ranches.”  

Farmworker Justice has endorsed this important legislation as one step toward fixing our broken immigration system. Farmworker Justice will continue its efforts to win a path to citizenship for all aspiring Americans, including undocumented farmworkers and their family members.  A majority of farmworkers are undocumented immigrants. 

Farmworker Justice is a national advocacy organization for farmworkers with over thirty-five years of experience serving the farmworker community regarding immigration and labor policy.

www.farmworkerjustice.org

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For more information, contact Bruce Goldstein at 202-800-2521 or [email protected]

April 03, 2019

For Immediate Release                                       Contact: Adrienne DerVartanian, Farmworker Justice

April 3, 2019                                                          202-800-2522

Farmworker Justice Statement on House Immigration Subcommittee Hearing:

“Securing the Future of American Agriculture”

Congress Should Pass Immigration Reform that Respects the Contributions of Farmworkers

(Washington, D.C.)   Regarding today’s hearing of the House Judiciary immigration subcommittee titled “Securing the Future of American Agriculture,” Farmworker Justice President Bruce Goldstein stated: “The status quo for farmworkers and agricultural employers is untenable.  Farmworkers and their families are currently living under the threat of arrest, deportation and family separation. This daily reality affects their ability to do their jobs safely and productively. The most important and urgently needed step right now is providing undocumented farmworkers and their family members the opportunity to obtain immigration status and a path to citizenship. This hearing is an opportunity to move towards a positive and workable solution in Congress.”

Earlier this year, Farmworker Justice welcomed the introduction of the Agricultural Worker Program Act of 2019. This bill builds momentum toward comprehensive immigration reform while addressing the unique and urgent needs of agricultural and rural communities. We thank Senator Feinstein, Representative Lofgren and other Members of Congress for their leadership in support of reasonable, workable and fair immigration reform and their attention to farmworkers in this bill.

The bill would establish an earned legalization program under which certain farmworkers who meet agricultural work requirements, national security clearance requirements, and other obligations are given temporary permission to work in agriculture and the opportunity to earn immigration status with a path to citizenship.  Their immediate family members in the United States also would have an opportunity to convert their status. President Goldstein added, “the Agricultural Worker Program Act would help ensure a stable, legal workforce in agriculture, which is good for farmworkers, employers, consumers and the national interest.”

Farmworker Justice is a national advocacy organization for farmworkers with over thirty-five years of experience serving the farmworker community regarding immigration and labor policy.

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For more information, contact Adrienne DerVartanian at 202-800-2522 or [email protected].

April 01, 2019

FARMWORKER JUSTICE TO RECOGNIZE
SOCIAL JUSTICE LEADERS AT ITS
2019 LOS ANGELES AWARDS