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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)

January 11, 2018

Farmworker Justice Statement on Rep. Goodlatte’s Anti-Immigrant Bill

Yesterday, Rep. Bob Goodlatte, Chairman of the House Judiciary Committee, and Representatives McCaul, Labrador and McSally, released a hard-line anti-immigration proposal entitled the “Securing America’s Future Act.”  Farmworker Justice opposes this multi-faceted proposal, which incorporates Goodlatte’s anti-worker, anti-immigrant Agricultural Guestworker Act. The bill combines many of the worst elements of anti-immigrant policies, including building a costly border wall, increasing arrests and deportations of undocumented immigrants, attacking sanctuary cities, and eliminating existing opportunities for family reunification as well as the diversity visa program. Although it purports to offer relief to Dreamers, the bill only offers a three-year, temporary legal status, without any permanent solution or path to citizenship.

The bill would also require employers to use E-verify, which would exacerbate discrimination against Latinos and foreign-born workers, who make up the majority of the farm labor source. If enacted, the agricultural guestworker provisions in the bill would replace the current H-2A agricultural guestworker program with a devastating new program, the H-2C program. The H-2C program would expand employer access to potentially millions of vulnerable new “guestworkers,” while slashing worker protections for hundreds of thousands of U.S. farmworkers, leading to job losses, lower wages and exploitation. Instead of providing experienced undocumented farmworkers with a path to immigration status and citizenship, the only option this bill provides is for those workers to self-deport with limited options to return as subjugated contract laborers under the new H-2C program.

Rep. Goodlatte, a long-time immigration restrictionist, is trying to push his extreme anti-immigrant agenda at a moment of bipartisan negotiations between legislators and the White House to reach a much-needed solution for Dreamers. Farmworker Justice President Bruce Goldstein stated: “Congress must reject the Goodlatte bill because it is anti-immigrant, anti-worker, cruel, impractical, costly and harmful to our food and agriculture systems.  Congress must provide a solution now for Dreamers, many of whom are farmworkers and from farmworker families. We must continue in the longer term to reform our broken immigration system through policies that respect our history as a nation of immigrants and our democratic and economic freedoms.”

January 09, 2018

Report by Trump Administration Task Force on Agriculture and Rural Prosperity Fails Farmworkers, their Families and their Communities

On January 8, Secretary of Agriculture Sonny Perdue, Chair of the inter-agency Task Force on Agriculture and Rural Prosperity, established by President Trump, publicly released its Report to the President of the United States, which is dated October 21, 2017.

The 42-page report is fundamentally flawed because it ignores the interests and needs of farmworkers and their family members. While it acknowledges the existence of farmworkers, it treats them largely as economic inputs utilized by farmers rather than as living, breathing human beings who are vital to the economy and rural communities.

The report makes no mention of the word immigration despite it being of vital significance to the future of agriculture and rural communities.  The Task Force states that farmers are having difficulty finding workers who are citizens or lawful permanent residents to fill their jobs, and acknowledges that undocumented workers are being hired.  It does not, however, state the reality that at least one-half (and probably much more) of the farm labor force is undocumented.  In a major failing, the report does not recommend immigration reform that would grant undocumented workers a chance for immigration status and a path to citizenship.

The report ignores the relationship between the growers’ difficulty attracting and retaining adequate numbers of workers and the fact that agricultural work in the U.S. is characterized by low wages and lack of fringe benefits, high rates of injuries and workplace abuses, and discrimination in labor laws that deprives farmworkers of many protections applicable to most other workers. The report does not discuss the need to remedy and prevent the rampant violations of labor protections in agriculture that harm farmworkers as well as law-abiding employers.

The report suggests that the Administration will be making policy and regulatory changes to the H-2A agricultural guestworker program in response to complaints that were “well communicated by farmers.”  The report ignores the many well-documented abuses experienced by farmworkers under the H-2A program.  Nor does the report suggest why agricultural workers should be forced into a guestworker status with no path to democratic or economic freedoms applicable to immigrants and citizens.

Even when discussing the needs of rural communities in order to improve quality of life – such as addressing gaps in infrastructure, housing, access to health care and internet connectivity – the report fails to identify the particular challenges faced by farmworkers.  Instead the report focuses on the needs of businesses and farm owners or other rural residents.

The report briefly mentions the need for science-based regulations to ensure the health of consumers of food, but there is no mention of confronting pesticides and other occupational hazards that disproportionately kill and injure farmworkers.

The Task Force also lost an opportunity to encourage positive trends in agriculture by neglecting to discuss corporate social responsibility in the food supply chain.  Government should encourage companies that are responding to consumers’ demands for assurances that food production occurs responsibly with regard to the treatment of farmworkers in the fields.

Any report on the future of agriculture and rural prosperity should recognize the contributions and needs of the nation’s approximately 2.5 million farmworkers and their family members. The Task Force does not appear to have taken advantage of the informed views of many farmworkers and their representatives as well as numerous reports, books and studies about the needs of this nation’s farmworkers, families and communities.  This report, despite raising some valid concerns and offering some helpful recommendations about agriculture and rural communities, has failed the President and the public.

        Bruce Goldstein

        President, Farmworker Justice

        January 9, 2018

Featured Blog

April 11, 2018

Below is a copy of a letter to the editor by Farmworker Justice president Bruce Goldstein, published in the Washington Post. A link to the letter can be found here

The article “Dairy farm meets tech revolution” [Economy & Business, April 6] did not address the reality for farmworkers. In recent years, dairy farms have consolidated into large operations. About one-half of dairies have 1,000 or more milking cows. These larger farms, even when using robots and artificial intelligence, need labor, and they increasingly hire immigrants.

Conditions for workers on many dairy farms are poor and often dangerous. In 2014 there were 49 reported fatalities in dairy cattle and milk production. Occupational death and injury rates in agriculture, livestock production and dairies are disproportionately high compared with other sectors. Yet federal employment laws often don’t apply to dairy farms. Even large farms are exempt from paying overtime and thus have little downside to requiring 70, 80 or 90 hours in a workweek, which can be dangerous and interfere with family life. Most federal occupational safety standards don’t apply to farms, and the few that do cannot be enforced in agriculture unless a farm operates a labor housing camp or employs at least 11 workers.

Dairy workers have been pressing for changes in labor practices and employment laws, as well as seeking collaborations with the dairy industry to improve wages and working conditions. Robots and artificial intelligence can reduce the need for labor and improve efficiency on dairy farms, but there is still a need for improvements when it comes to dairy farmworkers.

Bruce Goldstein, Washington

The writer is president of Farmworker Justice.

April 06, 2018

Farmworker Justice Update: 04/06/18

California Agricultural Employers Decry Labor Shortage

A recent article discussed California agricultural employers’ concerns about labor shortages. Some growers claim that labor shortages caused crops not to be picked (but the article did not note that there can be financial reasons for a farmer limiting a harvest). Increased fears of immigration enforcement and deportations have had a chilling effect on the movement among farms by some undocumented workers. The lack of affordable housing near job sites is also cited by employers throughout the article as a challenging factor in retaining employees. The article mentions Swanton Berry Farm, the first certified organic farm in the U.S. to sign a labor contract with the United Farm Workers (UFW) as an example that could be emulated by other employers. Swanton’s labor contract includes health insurance, vacation leave, pensions and other benefits, including on-site housing. The article also mentions the growth of the cannabis industry as a higher-paying alternative for some agricultural workers. Although the article notes the potential for new harvesting technologies, employers recognize that many crops, including berries, will still rely on human labor.

President Trump Plans to Deploy National Guard to U.S.-Mexico Border

On April 4, President Trump signed a proclamation directing the National Guard to deploy to the southern U.S. border with Mexico. President Trump had previously stated that he wanted to deploy military personnel to the border until he is able to complete construction of a border wall. On April 5, President Trump stated that between 2,000 and 4,000 National Guard troops could be sent to the border. The decision comes at a time when unauthorized migration to the U.S. is at an all-time low, as are border apprehensions, and many apprehensions are actually asylum seekers who present themselves willingly to border agents seeking assistance. As noted by the Southern Border Communities Coalition (SBCC), this decision is of great concern to the local communities who will suffer from increased militarization of the border.

DOJ Sets Performance Quotas for Immigration Judges

The Department of Justice (DOJ), led by Attorney General Jeff Sessions, recently announced that it is setting quotas for immigration judges as part of a broader attempt to speed up deportations. The new quotas will require immigration judges to clear at least 700 cases a year, regardless of the merits or complexities of the cases involved. Immigration lawyers and judges have voiced their opposition to the quotas, stating that they will undermine judicial independence and erode due process rights for immigrants.

Trump Administration Seeks to Add Citizenship Question to 2020 Census

On March 26, the Trump administration announced that it plans to include a citizenship question in the 2020 census. The census, which is constitutionally mandated, is used to apportion Congressional representation and federal funds to states. Experts fear that the inclusion of an immigration question will lead to lower response rates and/or inaccurate census data, with significant political and economic impacts for both immigrant and non-immigrant communities. Furthermore, the immigration question is unnecessarily intrusive and may raise concerns about the confidentiality of the census’ personal information and how government authorities may use that information. There are already many challenges in ensuring an accurate count of farmworkers in the census and questions regarding citizenship status will only worsen this problem. On April 3, seventeen state attorney generals filed a lawsuit against the Trump administration challenging the decision to add a citizenship question to the census. The lawsuit notes that both the Census Bureau and all its living former directors have warned that questioning residents about their immigration status would jeopardize the accuracy of the census. As noted by Mother Jones, an unfair and inaccurate census could have negative impacts for decades to come.

Update on Farmworker Health and Safety

New Draft of “Public Charge” Proposal Would Harm Low-Wage Immigrant Workers

The Washington Post recently obtained a new draft of a Department of Homeland Security (DHS) “public charge” proposal which would penalize immigrants for using public benefits. The draft proposal, which has been mentioned in prior Farmworker Justice updates, would apply to those seeking immigration visas or legal permanent residency in the U.S. Applicants could be denied the immigration status they seek if they have used welfare or public benefits in the past, even if said benefits were for their U.S.-citizen dependents. The latest draft proposal would even penalize people in families that used popular tax deductions such as the Earned Income Tax Credit (EITC). The EITC benefits families with low-income workers, among whom are most farmworkers because of the low wages most farmworker receive. DHS officials have said the proposal is not finalized, but the agency has also said that it is preparing to publish the proposed rule changes soon.  Farmworker Justice will continue to monitor the proposal and will send an update if and when the proposal is finalized and published.

PPDC Member Letter Notes EPA’s Mischaracterization of Policy Discussion

A recent Think Progress article focuses on a letter sent by several members of the Pesticide Program Dialogue Committee (PPDC), including Farmworker Justice, to the U.S. Environmental Protection Agency (EPA). The PPDC is a federal advisory committee that holds public meetings to discuss the EPA’s policies regarding pesticides. The letter, which was sent to EPA leadership last month, denounces the agency’s mischaracterization of a November 2017 PPDC meeting that focused on two key worker protection rules: the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators Rule (CPA). The EPA mischaracterized the policy discussion in a way that suggested more support for EPA Administrator Pruitt’s plans to weaken these rules.

As noted in previous Farmworker Justice updates, under Administrator Pruitt, and in response to demands from agribusiness groups, the EPA recently announced that it will begin a new rule-making process to roll back important parts of these rules. The key WPS provisions under threat include a minimum age of 18 for handling pesticides, the right to a representative who can access pesticide exposure information, and safety measures to prevent exposure to bystanders during pesticide applications. The EPA has also announced plans to reconsider the minimum age provisions in the CPA rule. Farmworker Justice, along with a broad coalition of farmworker and environmental organizations, opposes weakening worker protections and urges the EPA to move forward with full implementation and enforcement of the existing WPS and CPA rule. On March 31, Farmworker Justice sent a letter to EPA Administrator Pruitt on behalf of more than 125 organizations representing children, faith, agriculture, health, labor, human rights and environmental organizations, opposing the EPA’s efforts to weaken the protections for workers and their families provided by the WPS and CPA rule.

April 04, 2018

It’s true that most of our food grown in the U.S. can be considered to come from “family farms.” But many of those “family farms” are incorporated and are sizeable businesses.  

The exclusion of farmworkers from many employment laws is justified partly on a misunderstanding about the business of agriculture.  Farmworkers mostly work for big farms, not the “small family farm” of yore or the new wave of urban and semi-urban growers of the produce in your Community Supported Agriculture delivery.  

In a new report, “Three Decades of Consolidation in U.S. Agriculture,” the U.S. Department of Agriculture Economic Research Service discusses the trend toward larger farms, which the report notes is longer than 30 years.  The industrialization of agriculture was famously described in “Factories in the Field,” a book by Carey McWilliams published in 1939.   

Many, many small family farms dot rural landscapes but their share of farm production is tiny and they don’t employ many farmworkers.  There are about 2.1 million farms in the U.S. The report states that “nearly 1 million farms—or 48 percent of the total — had GCFI [gross cash farm income, a measure of annual sales] of less than $10,000, and collectively accounted for less than 1 percent of production.”

Of those 2.1 million farms, just 63,500 had sales of $1 million or more per year.  Yet, that group, amounting to 3% of farms, accounted for 51% of the value of all farms’ sales of agricultural products.  

And of those 3% of farms with $1 million or more in annual sales, 90% can be characterized as “family farms” in the sense that they are owned or controlled by a family even if the farm is technically owned by limited liability company (LLC) or corporation.  

Most farmworkers are laboring in the labor-intensive sector of agriculture, which includes fruits, vegetables, and nursery (or horticultural) products, which are referred to as “specialty crops.”  

Specialty crop growers also have consolidated into larger farms.  “Very large farms,” those with sales of $5 million or more per year account for 48.3% of the value of production (sales).  An additional 27.8% of sales come from “large farms,” defined as those with sales of $1 million $5 million per year. The USDA ERS report is available here.1  

A separate economic analysis estimates that a majority of the nation’s farmworkers are employed on about 10,000 large farms across the U.S.  The roughly 8,200 farms in the U.S. that had payrolls of hired workers of $500,000 or more accounted for about half of the nation’s payroll expenses for hired farm labor.2

The anachronistic exemptions in employment laws for agriculture should end.  “Family farms” may employ most farmworkers, but other businesses – especially medium and large businesses -- are not exempt from employment laws merely because the owner is a family.   Farmworkers deserve the job standards, legal protections and respect that we extend to other occupations’ workers.

1. The USDA ERS report is co-authored by James M. MacDonald, Robert A. Hoppe, and Doris Newton.

2. Philip Martin, Issue Brief:  Immigration and Farm Labor, (Migration Policy Institute 2017), p. 2 and fn. 1.