Farmworker Justice Update 6/12/2015

Status of Executive Action on Immigration

Millions of aspiring Americans await resolution of the lawsuit against President Obama’s DAPA and expanded DACA programs. As we shared earlier, the 5th Circuit Court of Appeals denied the Obama Administration’s emergency request for a stay of the injunction (requesting the court to allow the programs to proceed while the litigation is pending). The denial of the stay was disappointing but not conclusive, as it was an emergency motion in front of a very conservative panel of judges. While 2 of the 3 judges on the panel were conservative and voted to deny the stay, the 3rd judge dissented and sided with the Administration.

The appeal of the injunction is moving forward with a hearing scheduled for July 10. In a promising development, the appellate court’s order regarding briefing indicated that the judges that will hear the July 10 arguments do not feel bound by the decision denying the stay request. We do not yet know who the three judges on the panel will be. Unfortunately the 5th Circuit is considered the most conservative circuit in the nation.

The House of Representatives meanwhile, on an appropriations bill, voted to prevent the Obama Administration from using any funds to defend its immigration actions in the lawsuit. President Obama has already threatened to veto the spending measure due to domestic spending cuts.

Proposed Legislation on H-2A Agricultural Guestworker Program

Some members of Congress continue to show interest in the failed anti-immigrant, guestworker-only model, rather than seek a balanced solution that includes a path to immigration status and citizenship for undocumented workers. U.S. Rep. Rick Allen (R-Ga.), with the support of Rep. Sanford Bishop (D-Ga.) and 8 others introduced a bill, the BARN Act, that would slash needed protections in the H-2A program and remove important government oversight. The bill is similar to one introduced in the past by former Rep. Kingston (R-GA). Our summary of the bill can be found here. In the Senate, Senator Ron Johnson (R-WI) seems to hold a similar position, saying “[f]rom my standpoint, if you really want to secure our border, let’s eliminate or drastically reduce the incentives for illegal immigration, starting with a guest worker program.” In March, the Senate Homeland Security and Governmental Affairs Committee, which he chairs, held a hearing that focused on future guestworker programs.

Guestworker Program Developments

Guestworker programs, by imposing a temporary, restrictive non-immigrant status deprive people of economic and political freedoms in violation of our country’s values of democracy. The Economic Policy Institute recently conducted a briefing highlighting a study showing that temporary foreign workers’ lack of bargaining power, due to their vulnerable status and dependency on their employers, results in low wages in comparison to those with immigration status and citizenship. Unfortunately we are seeing increased use of the H-2A program.

DHS’s increased enforcement of immigration laws has been one factor leading to an increased use of the H-2A program. A recent fine of $2.25 million levied against Washington apple grower Broetje Orchards is one of the largest ever levied against an agricultural employer. Since the majority of farmworkers are undocumented, such enforcement is likely to lead more employers to use the H-2A program.

Media Coverage and Recent Polling

Numerous recent news articles highlight the conditions in which farmworkers are living and working. In Kentucky, Southern Migrant Legal Services and the Kentucky Equal Justice Center filed three separate federal lawsuits on behalf of 39 Mexican guestworkers against six tobacco farmers for squalid housing conditions, back wages, and other violations.

Photographer and journalist David Bacon released a three parts series on the living conditions of farmworkers in California, specifically on their low wages and lack of health care, with a focus on the indigenous community. In Bacon’s first article, he discusses the low wage levels for farmworkers, noting that if (as proposed by the UFW in the late 90s) the price of a clamshell box of strawberries increased by just 5¢, the workers' wages would increase by 25%. Most consumers wouldn't even notice the increase, since the retail price normally fluctuates far more than that. The Coalition of Immokalee Workers has used this concept in their penny per pound campaign. Bacon’s second article shares the experiences of a Triqui farmworker and his family (the Triqui are indigenous people from the western part of the Mexican state of Oaxaca). The series concludes with the story of a Triqui farmworker mother sharing her work experience in the pea fields of California and the poverty and health problems she experiences due to her long hours in the field.

Despite the hostile attitude towards immigrants in Congress, there continues to be broad public support for a pathway to legal status for undocumented individuals. According to a recent Pew Hispanic Center poll, 72% of all Americans back a pathway to legal status for undocumented immigrants who meet certain requirements.

Administration Coordination on Immigration/Labor Intersection

Immigration status is central to the ability of many farmworkers to feel empowered to assert their rights in the workplace and seek improved wages and working conditions. As part of the President’s November 2014 executive actions, the president created an Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws to address the intersection of employment and immigration enforcement. On May 8, the working group, which includes the DOL, DOJ, DHS, EEOC and NLRB, issued an action plan to achieve its goals to “enhance coordination in those cases where federal responsibilities to enforce labor, employment, and immigration laws may overlap, to ensure that workers who cooperate with labor and employment enforcement may continue to do so without fear of retaliation, to ensure that unscrupulous parties do not attempt to misuse immigration enforcement or labor laws to thwart or manipulate worker protections or labor and immigration enforcement, and to ensure the effective enforcement of these laws.” The action plan lists goals to accomplish or begin within the next 6 months, including “[c]lear explanations and methods for accessing any temporary or permanent immigration benefits or relief that may be available as the result of workplace violations or criminal activity in the workplace.”

FJ believes that access to deferred action or other immigration relief is key to ensuring an improved ability for undocumented workers and guestworkers to assert their workplace rights without fear of immigration enforcement or other retaliation. We look forward to working with our colleagues to help make this a reality for those workers. For those of you on the ground, please share with us any recent examples where immigration enforcement (or fear of it) is interfering with workers’ exercising their rights.

Farmworker Organizing

Mexican farmworkers in San Quintin Baja California, many of whom are also indigenous people from southern Mexico, organized and appear to have won major improvements that they hope to spread to other areas. While the agreement is a victory, there remain many challenges in implementation of the wage rates and the government’s assurances of social security and overtime (which many US farmworkers are still excluded from). The wage rates are an improvement but are not as high as the workers sought; moreover, they are still low in comparison to US farmworkers' wages for doing the same tasks on the same kinds of fruits and vegetables that are exported to the US and that we pay US prices for.

Finally, in an event showing the shared struggles in agriculture around the globe, the International Labor Rights Forum held a conference on June 3rd titled “Hasta La Victoria! Farm Worker Justice in Global Supply Chains.” The panels, which included FJ’s Bruce Goldstein,, focused on challenges to securing worker rights in agriculture, and labor organizing in the tobacco industry in North Carolina and Malawi. U.S. Representative Marcy Kaptur (D-OH), delivered the keynote speech. The two featured speakers, who were also honored during the ILRF’s evening award dinner, were Baldemar Velasquez, President of the Farm Labor Organizing Committee, AFL-CIO, and Raphael Sandramu, General Secretary of the Tobacco and Allied Workers Union of Malawi.

Farmworker Justice will continue its efforts toward a justice immigration system. Please keep with us on our blog, Facebook, and twitter feed. Many materials on immigration, labor, occupational safety, and health are on our website, www.farmworkerjustice.org.