Litigation

We actively engage in litigation to advance employment rights of farmworkers and to remedy systemic labor abuses confronted by farmworkers.

Farmworker Justice, since its inception in 1981, has filed lawsuits on behalf of farmworkers and their organizations, often in collaboration with other advocates and attorneys to maximize impact.  Some of the cases address systemic labor abuses committed by agricultural employers and seek to establish a precedent or pattern that will affect many farmworkers and employers around the country.  Many of our cases are lawsuits against  federal government agencies for adopting illegal policies that harm farmworkers and their family members.  These cases involve immigration, labor rights, the H-2A agricultural guestworker program, occupational safety standards, and pesticide safety standards.  We also support cases brought in state courts and join in on amicus curiae (friend of the court) briefs in the U.S. Supreme Court and courts of appeals to educate judges about farmworkers and the challenges they experience.  Our litigation docket of recent cases is available here.

 

Castillo et al. v. Whitmer et al., Case no. 1:20-cv-751 (W.D. Mich) (requested permission to participate as amicus curiae in case challenging Michigan’s efforts to protect farmworkers from COVID-19)

Two agricultural employers in Michigan and six individual farmworkers, with the support of the Michigan Farm Bureau, filed suit against Michigan’s governor and other officials to challenge an emergency public health order that was issued by the state to help protect vulnerable farmworkers from the spread of the novel coronavirus. The Michigan order in question imposes minimal–but highly necessary–requirements on agricultural employers to test workers for COVID-19 and ensure that those who test positive do not come to work and endanger other workers. Although the plaintiffs in this case claim to be advocating for the wellbeing of workers, they are really advancing the interests of agricultural businesses who wish to defeat government regulations to protect farmworkers’ occupational safety and health. On August 20, 2020, “friends of the court,” including Farmworker Justice, two farm labor unions, several other local and national advocacy groups, public health experts, and legal services providers, requested permission to participate as amicus curiae and submitted a brief in support of the emergency health order. The judge denied the request to participate as amici. The state’s order regarding testing is one of several actions by the state to address worker safety during the pandemic.

Federal District Court Judge Maloney denied the plaintiffs’ initial motion for a temporary restraining order, so the state’s emergency health order remains in effect at this time. The plaintiffs are now seeking a preliminary injunction to stop the health order’s implementation.

 

League of United Latin American Citizens (LULAC) v. Wheeler 899 F.3d 814 (9th Cir. 2018); Pesticide Action Network North America v. Environmental Protection Agency, 798 F.3d 809 (9th Cir. 2015) (lawsuit against EPA’s use of chlorpyrifos) (pending in the U.S. Court of Appeals for the 9th Circuit).

Farmworker Justice is a plaintiff in a complex, long-running series of administrative complaints and federal lawsuits that seek to require the EPA to ban agricultural use of the pesticide chloryprifos, which is already banned for household use. Chlorpyrifos has been linked to neurodevelopmental damage in children. A coalition of organizations, including Farmworker Justice, filed a petition with the EPA in 2007 to ban chlorpyrifos. In 2015, after the EPA failed to act, we obtained from the U.S. Court of Appeals a writ of mandamus ordering the EPA to respond to the petition on chloryprifos by March 31, 2017. The EPA obtained substantial scientific evidence and had said it would ban chlorpyrifos by that time but did not do so before President Obama left office in January. On March 29, 2017, EPA Administrator Scott Pruitt decided he would not ban chlorpyrifos, despite his lack of evidence for this decision, and would continue to consider the issue through 2022. Through a series of lawsuits and various decisions in the U.S. Court of Appeals for the Ninth Circuit, the EPA was eventually ordered to make a full and fair decision on the petition and on administrative objections that our coalition had filed against the EPA’s refusal to ban the pesticide.  (The cases include case No. 17-71636, LULAC v. Pruitt (now Wheeler) in the U.S. Court of Appeals for the Ninth Circuit, and No. 14-72794.)  On July 18, 2019, the EPA issued a decision refusing a ban. The lawsuit, filed on August 7, 2019, against this latest decision is pending. Lead counsel is Earthjustice. The parties and several amici—including the American Academy of Pediatrics—have filed their briefs in this case. The court heard oral argument on Tuesday, July 28, 2020.

 

Peri & Sons Farms, Inc. v. Acosta, No. 1:19-cv-00034-TJK (D.D.C. 2019), appeal withdrawn (intervention to defend against grower lawsuit on H-2A program wage regulations).

On January 7, 2019, the National Council of Agricultural Employers (NCAE) and its member Peri & Sons Farms, Inc., filed a lawsuit in D.C. federal court against then-Secretary of Labor Alexander Acosta. NCAE sought to invalidate the Department of Labor (DOL)’s longstanding methodology for setting the Adverse Effect Wage Rates (AEWRs) under the H-2A temporary foreign agricultural worker program. The plaintiffs also requested a temporary restraining order and a preliminary injunction to set the wage rates to the 2018 levels. They asked the court to stop the implementation of the 2019 AEWRs, which took effect on January 9, 2019 and were higher in most states. The plaintiffs said that the one-year wage freeze could reduce employers’ wage costs – and reduce farmworkers’ wages – by $123 million.

The United Farm Workers (UFW), represented by Farmworker Justice and Covington & Burling LLP, and other groups requested and received permission to intervene in the lawsuit to oppose the growers’ legal claims and protect farmworkers’ wages. The Department of Labor filed a brief opposing the growers’ legal claims. On March 18, 2019, U.S. District Judge Timothy Kelly (a Trump appointee) issued a decision denying the motion for preliminary injunction and dismissing the case in its entirety.  The judge ruled that the six-year statute of limitations barred the lawsuit because the challenged regulation was issued in 2010.  The plaintiff grower appealed in April 2019 but withdrew the appeal in October, so the judge’s decision is final.

 

La Clinica de La Raza et al. v. Trump, Case No. 3:19-cv-4980 (N.D. Calif. filed Aug. 16, 2019) (lawsuit against Trump “public charge” immigration policy).

Farmworker Justice is one of ten plaintiffs suing in a lawsuit to stop the Trump Administration from implementing its new immigration regulation regarding the “public charge” policy. The new policy, which was set to take effect October 15, 2019, would prevent many low-income people from being granted immigration status based on the supposed likelihood that they would become a “public charge,” under a harsh new definition of that term. The plaintiff organizations would be harmed in carrying out their mission to serve affected individuals. Several states’ attorneys general also filed a lawsuit in the same court. The attorneys for FJ and other plaintiffs include the National Immigration Law Center, Western Center on Law and Poverty, National Health Law Program and Asian Americans Advancing Justice-Los Angeles.

Farmworker Justice submitted extensive comments to the DHS opposing the policy when it was proposed. District Court Judge Hamilton held a joint hearing on October 2, 2019 on the motion for preliminary injunction in this case and cases brought by county and state plaintiffs challenging the same rule. The judge asked for additional information about the alleged need for a nation-wide injunction.  Plaintiffs’ counsel emphasized that Farmworker Justice serves farmworkers throughout the nation. On October 11, the judge granted the plaintiffs’ motion for a preliminary injunction in the related cases, but limited the injunction to the geographic locations covered by government agencies that sued in those cases: Oregon, Maine, Pennsylvania, the District of Columbia and San Francisco City/County and Santa Clara County (in California). She denied the motion in this case, finding that Farmworker Justice and other organizational plaintiffs were not “within the zone of interest” such that they could challenge the rule under the Administrative Procedures Act. Two other federal courts issued nationwide injunctions, but these were later narrowed by appellate courts.

Defendants soon sought a stay of the court’s preliminary injunction in the related cases, which the Ninth Circuit granted on December 5, 2019. Along with the other plaintiffs in this case, Farmworker Justice initially appealed the district court’s zone-of-interest ruling, but ultimately withdrew the appeal.

In August 2020, while ruling on the defendants’ motion to dismiss, Judge Hamilton reversed herself and held that Farmworker Justice and the other organizational plaintiffs did fall within the “zone of interest” and can therefore move forward on the Administrative Procedures Act claims, which remain pending. She granted the government’s motion to dismiss our claim that the rule violated the equal protection clause but held that we can amend the complaint. She also dismissed our claim that the rule was invalid because the acting heads of DHS who implemented it were not validly in those positions at the time. Because Judge Hamilton’s ruling on this latter issue is inconsistent with a new Government Accountability Office decision, there likely will be additional litigation in the district court and potentially on appeal.

Other courts around the country have granted preliminary injunctions halting the enforcement of the rule, such that it is not currently in effect in New York, Connecticut, Vermont, or Illinois.  A separate preliminary nationwide injunction issued by the Southern District of New York blocking a companion public charge rule by the Department of State during the COVID public health crisis remains in effect.

 

Farmworker Justice v. U.S. Department of Agriculture, Case no. 1:19-cv-01946 (D.D.C. filed June 28, 2019) (Freedom of Information Act case).

Farmworker Justice is the plaintiff and co-counsel with Public Citizen in this action against the USDA for refusing to release documents in violation of the Freedom of Information Act. The documents relate to the Trump Administration’s inter-agency working group on the H-2A agricultural guestworker program. They are relevant to the Trump Administration’s proposed changes to the H-2A program regulations, which were published as a proposed rule in July 2019 with a comment period ending September 24, 2019.  Farmworker Justice is cocounseling the case with Public Citizen.  The USDA agreed to settle the case and began releasing hundreds of pages of documents over a period of months, but the court may need to rule on the continued withholding of several documents.

 

Jose Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc. Case No. 96267-7 (Wash. 2019) (challenge to state overtime law excluding farmworkers)

Farmworker Justice and Prof. Marc Linder submitted an amicus curiae brief in support of the claim that Washington State law violates farmworkers’ state constitutional rights by excluding them from overtime pay.  The amicus brief focuses on the racially discriminatory motive in the origins of the exclusion of farmworkers from labor-protective legislation.

 

U.S. Department of Homeland Security, et al v. Regents of the University of California, 140 S.Ct. 1891 (2020) (Legality of DACA Program).

Farmworker Justice was an amicus curiae with other civil rights and immigrants’ rights organizations in the case challenging the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program, under which the Obama Administration granted relief from deportation for undocumented immigrants who were brought to the U.S. as children. This amicus brief was drafted by the Lawyers’ Committee for Civil Rights under Law and the Venable law firm.

In June 2020, the Supreme Court held that the Trump Administration’s decision to rescind DACA was arbitrary and capricious, in violation of the Administrative Procedure Act. This ruling did not bar the administration from attempting to rescind DACA again in the future, but instead required that the government offer a “reasoned analysis” in the future.

 

Kansas v. Garcia, 140 S.Ct. 791 (2020) (immigrant workers’ rights).

Farmworker Justice was an amicus curiae with the National Immigration Law Center, Southern Poverty Law Center, and other organizations. The amicus brief supported the defendants, immigrants who were charged with state crimes based in part on information provided to their employers on federal form I-9. The brief supported their argument that the federal Immigration Reform and Control Act (IRCA) preempted states from using information provided on a federal form I-9 in such a prosecution.

The Supreme Court held in March 2020 that the IRCA did not preempt the state’s actions, and it therefore upheld the lower court’s convictions.

 

Comcast v. National Association of African American-Owned Media and Entertainment Studios Networks, Inc., 140 S.Ct. 1009 (2020) (burden of proof required for civil rights claim)

Farmworker Justice, along with other civil rights organizations, was an amicus curiae in a case addressing the issue of what plaintiffs must show to prove that they experienced racial discrimination in the making and enforcing of contracts, in violation of Section 1981, a provision of the Civil Rights Act of 1866. NAACP Legal Defense Fund wrote the amicus brief in support of the claims made by NAAAPMES and an entertainment company owned by Byron Allen, an African-American entrepreneur, that Comcast, the nation’s largest cable company, refused to carry the plaintiffs’ programing. Section 1981’s protections apply to employment and other contracts.

The Supreme Court ruled for Comcast in March 2020, holding that a plaintiff suing for racial discrimination under Section 1981 cannot succeed on a showing that race was a “motivating factor” in the injury, but must instead prove that race was the actual, or “but for,” cause.

 

Jimenez v. GLK Foods, LLC; Ramirez v. GLK Foods, LLC, Case No. 1:2012cv00209 and -00210 (E.D. Wis. filed 2012) (Successful class actions for sauerkraut processing workers from Mexico).

The Chicago firm Hughes Socol Piers Resnick & Dym and Farmworker Justice succeeded in two class action lawsuits charging Wisconsin-based GLK Foods, the world’s largest sauerkraut producer, with federal and state wage and employment law violations in its hiring and employment of more than 200 H-2B temporary foreign workers between 2006 and 2011. After rulings in favor of the workers by the federal district court, and the filing of notices of appeal by the defendants, the cases were settled on the merits and on attorneys fees and expenses. Funds were distributed to the workers, all of whom were in Mexico, in 2018 and 2019.

The facts leading up to the case began in 2011 when GLK hired H-2B workers from Mexico to cut raw cabbage at a sauerkraut processing facility. In the fall of 2011, just before a new DOL regulation would have required an increase in H-2B wages nationwide, GLK fired all of the workers that it had brought into the United States (the Jimenez plaintiffs) and replaced them with migrant workers from Florida. At the time they were fired, the H-2B workers had worked for only six or seven weeks, not enough to repay debts they incurred to pay illegal recruitment fees and visa and transportation expenses that GLK never reimbursed. GLK also notified workers still in Mexico (the Ramirez plaintiffs), who had already obtained visas at their own expense, that their services would no longer be needed, breaching their employment agreements. In these and other ways, GLK violated the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act, the Wisconsin Migrant Labor Act, and state contract law.

Judge Greisbach issued final judgment on September 29, 2017, including awards to the plaintiff classes totaling over $1.1 million in damages and prejudgment interest. Defendants appealed to the U.S. Court of Appeals for the Seventh Circuit.

Through mediation, the case on the merits was settled subject to notice to the class members and court approval. Final judgements were entered in the two cases on September 29, 2018, including prejudgment interest. The court also approved a plan, paid for by the defendants, for distribution of the damages to class members, all of whom were in Mexico. The class members, numbering about 240, are receiving a total of $930,000. Following mediated negotiations, the attorneys fees were settled for $845,000 in September 2018. Farmworker Justice received $202,000 and the remainder went to lead counsel at Hughes Socol Piers Resnick & Dym, Ltd.

 

PCUN v. Pruitt, Case No. 17-CV-03434 (N.D. Cal. filed June 4, 2017); 293 F. Supp. 3d 1062 (N.D. Cal. 2018) (Certified Pesticide Applicator Rule litigation).

Farmworker Justice and Earthjustice co-counseled this successful lawsuit against the Environmental Protection Agency and its then-Administrator, E. Scott Pruitt, for delaying implementation of the Certification of Pesticide Applicators regulation concerning safety standards for certified pesticide applicators and their employees who apply restricted-use pesticides (RUPs). The final rule was issued after years of consideration, 82 Fed. Reg. 952 (Jan. 4, 2017), and was to take effect on March 6, 2017. It requires improved training and prohibits minors from applying these pesticides. Without engaging in required notice-and-comment rulemaking, the EPA said it was delaying implementation of the new standards. The EPA defended the lawsuit primarily by denying that plaintiffs had “standing” to challenge the action. On March 21, 2018, the federal judge ruled that the plaintiffs had standing and that the agency acted illegally. He issued a declaration holding that the regulation took effect on March 6, 2017 and must be implemented. Defendants did not appeal. After further litigation, the District Court awarded the plaintiffs $236,363.47 for attorneys fees and costs. Plaintiffs were Pineros y Campesinos Unidos del Noroeste (PCUN), United Farm Workers, Farmworker Association of Florida, California Rural Legal Assistance Foundation, and Pesticide Action Network North America.

 

Rural & Migrant Ministry v. EPA, Case No. 1:18-cv-04743 (S.D.N.Y 2018) (successful challenge to the EPA’s delayed implementation of worker protections)

This successful lawsuit in federal court sought to end the EPA’s delay of implementation of the improved Worker Protection Standard on pesticides (WPS) that the agency issued as a final regulation during the Obama Administration. The Trump/Pruitt EPA did not wish to implement the WPS provision that requires employers to provide improved pesticide safety training. The case was filed on behalf of farmworker organizations in conjunction with attorneys general of NY, CA and MD. The EPA took actions to comply with the regulation a week after the court filing, rendering the lawsuit moot. We are monitoring to ensure compliance. The EPA planned to weaken the WPS by issuing a new regulation but was mostly thwarted in its goal by a legislative compromise with the pesticide industry that was reached in early 2019 as part a pesticide registration bill that Congress passed and Trump signed. The plaintiffs were Rural and Migrant Ministry, based in New York; Alianza Nacional de Campesinas (National Alliance of Farmworker Women, a national organization serving women farmworkers); El Comite de Apoyo a los Trabajadores Agricolas (Farmworkers Support Committee, a nonprofit organization that serves farmworkers, with offices in New Jersey, Pennsylvania and Maryland); Pineros y Campesinos Unidos del Noroeste (PCUN); Treeplanters and Farmworkers United, a labor union for agricultural workers in Oregon; Worker Justice Center of New York, a legal advocacy organization serving farmworkers in New York.