Farmworker Justice Update: April 26, 2021
House Passes the Farm Workforce Modernization Act
On March 18, 2021, the House passed the “Farm Workforce Modernization Act,” HR 1603 (FWMA), by a vote of 247-174. The bill resulted from long, difficult negotiations among Democrats, Republicans, agricultural employers, and farmworker organizations. The bipartisan bill garnered the votes of almost all Democrats and 30 Republicans. The bill next moves to the Senate, where it will need 60 votes, including at least 10 Republicans (and more if any Democrats vote against it), to overcome a very likely filibuster. Compromise was necessary to gain sufficient votes for potential enactment in Congress, particularly when there are many conservatives who oppose legalization of undocumented immigrants and oppose granting farmworkers employment-law protections. Farmworker Justice supports the legislation and urges the Senate to introduce and pass the bill. If enacted, the bill would help improve the lives of hundreds of thousands of farmworker families and improve the nation’s food and agriculture systems. Undocumented immigrant farmworkers and their family members would be eligible for immigration status and citizenship, and the H-2A agricultural guestworker program would be revised. The Farmworker Justice Fact Sheet explaining the bill’s provisions is available on our website’s Resource Center.
Citizenship for Essential Workers Act Introduced in the House and Senate
On March 15, 2021, Senators Alex Padilla (D-CA) and Elizabeth Warren (D-MA) and Representatives Joaquin Castro (D-TX) and Ted Lieu (D-CA), along with more than 50 co-sponsors, introduced the Citizenship for Essential Workers Act in both the House (H.R. 1909) and Senate (S.747). The legislation would create a pathway to citizenship for undocumented workers as well as H-2A and H-2B visa holders who have worked in an essential occupation at any point during the COVID-19 health crisis. It also allows parents, children, and spouses of essential workers to apply for green cards. Farmworkers have been designated as essential workers in the critical infrastructure sectors of food and agriculture. This bold legislation is a vital mechanism to recognize and protect the people who have risked their lives throughout the course of the deadly pandemic. Farmworker Justice supports the bill. Read the Farmworker Justice Fact Sheet on this bill.
Farmworker Justice Staff Member Testifies in House Appropriations Committee
On March 2, Iris Figueroa, Director of Economic and Environmental Justice testified on the need for federal funding to issue, implement and enforce occupational safety and health standards on COVID-19 in agriculture. The hearing, entitled Health and Safety Protections for Meatpacking, Poultry, and Agricultural Workers, was led by Chair of the Subcommittee on Labor, Health & Human Services, and Education, Rep. DeLauro. As Ms. Figueroa explained, farmworkers need adequate workplace protections in order to remain safe. She outlined a set of solutions that the Subcommittee could help advance and urged swift action.
Marty Walsh Confirmed as Secretary of the Department of Labor
The Senate has confirmed Marty Walsh, the former mayor of Boston, as the new head of the Department of Labor. Secretary Walsh has supported pro-worker efforts, including the PRO Act, which would make it easier for workers to unionize, as well as attempts to increase the minimum wage. He is the first DOL Secretary in five decades to have a union background.
President Biden Released Proposed Budget
President Biden submitted his proposed Skinny Budget to the Senate Appropriations Committee in April. The proposal would increase discretionary funding for several Departments, including the Department of Health and Human Services, Environmental Protection Agency, Department of Agriculture, and Department of Labor. Specifically, President Biden proposes increased funding for rural infrastructure, including for clean water and broadband access; nearly one billion dollars for an environmental justice initiative; and a substantial increase in funding for the Center for Disease Control, meant to help prevent or limit the harm of a future pandemic. Although the proposal largely maintains the same funding request for the Department of Homeland Security, it does include $861 million for assistance to Central America to address the root causes of migration as well as a request to fund 100 new immigration judges in order to tackle the case backlog.
States Take Steps to Include Farmworkers in Key Labor Protections
States across the country are taking steps to include farmworkers in key labor laws. Many legal exclusions are rooted in compromises legislators made in the 1930s with racist lawmakers who sought to exclude farmworkers and domestic workers—primarily workers of color—from minimum wage and overtime guarantees as well as collective bargaining protections. It is well past time that our state and federal laws close these gaps. States with recent and ongoing efforts include:
- Washington’s state legislature recently passed a law that would make farmworkers eligible for overtime pay. The overtime coverage would be phased in over several years—in January 2022, farmworkers would become eligible for overtime pay after 55 hours per week; by 2024, they would be eligible for overtime pay after working 40 hours in a week. The legislation won bipartisan support after the Washington State Supreme Court held last year that the exclusion of workers on dairy farms from overtime protection violated the state constitution.
- Colorado is considering a bill that would grant farmworkers minimum wage and overtime protections as well as the right to organize. It would also establish space requirements for living quarters, something that has become particularly important during the COVID-19 pandemic.
- Oregon lawmakers have introduced a bill that would include farmworkers in the state’s overtime protections, requiring employers to pay time and a half if workers clock more than 40 hours in a given week.
- Lawmakers in Maine have proposed two bills that would expand coverage to include farmworkers. LD 151 would protect workers from retaliation if they choose to organize for collective bargaining. LD 1022 would expand coverage of the state’s minimum wage and overtime laws to include farmworkers.
Supreme Court Hears Oral Argument in Case Challenging Union Access Rule
The U.S. Supreme Court heard oral arguments in Cedar Point Nursery v. Hassid on March 22, 2021. Farmworker Justice and partners filed an amicus curiae brief in the case. The plaintiffs in the case—two California growers—are challenging the state’s decades old regulation allowing union organizers access to growers’ fields during limited, non-work periods. Without access to the fields, organizers would have little opportunity to educate workers about their legal rights and protections. Nonetheless, the plaintiff-growers claim that the regulation violates their rights under the Fifth Amendment’s takings clause. Accepting their argument would require the Court to radically shift course from past takings clause case precedent and would threaten countless other regulatory frameworks that protect public health and safety. Although several of the justices seemed skeptical of the growers’ unprecedented arguments, we will not learn the outcome of the case for several months.
Migrant Workers File Petition Against United States
Two migrant worker women—Adareli Ponce Hernández and Maritza Pérez Ovando—have filed the first ever complaint against the United States under the recently-adopted United State-Mexico-Canada Agreement (USMCA). The USMCA is primarily a trade agreement, but it also prohibits each nation from gaining an unfair trade advantage by failing to enforce its labor protections. The complaint highlights the sex discrimination often faced by migrant worker women, who are routinely funneled into lower paid jobs and who repeatedly face sexual harassment and sexual violence while at work in the United States. As the complaint explains, the United States’ systemic failures to prevent discrimination and ensure compliance is a violation of Article 23 of the USMCA. Farmworker Justice, along with several other allies, has signed onto the petition.
CDM Launches Migrant Worker Job Portal
Centro de los Derechos del Migrante (CDM) has launched a job portal with a mission to “empower workers in their search for job opportunities.” The portal allows workers to search for H-2A and H-2B jobs directly while also learning about worker rights and protections.
Judge Rules in Favor of DOL in Case Challenging H-2A Practice
On March 19, a federal court ruled in favor of the U.S. Department of Labor in Garcia v. Stewart, a case challenging the DOL’s decision to grant H-2A labor certifications even when no prevailing wage rate has been established. The H-2A regulations set a wage floor, requiring employers to pay the highest of either (1) the adverse effect wage rate (AEWR), (2) the prevailing wage, (3) the collective bargaining wage rate, or (4) the federal or state minimum wage. State workforce agencies (SWAs) are responsible for setting local prevailing wages based on prevailing wage surveys, but often, these prevailing wages are never established, thereby cutting the wages of H-2A and domestic workers.
Four farmworkers and the Farm Labor Organizing Committee (FLOC) filed their complaint in Garcia v. Stewart, arguing that where the SWA had failed to set a prevailing wage, the DOL was required to determine the wage on its own before granting H-2A labor certifications. Although the district court held that the individual farmworkers had standing to bring their suit, it rejected the plaintiffs’ argument about DOL’s obligations to set a prevailing wage. Instead, it held that employers must only pay the highest of the available wage rates.
Workers File Fraud Complaint Against H-2A Employer
On March 25, two South African workers with H-2A visas filed a complaint against their employers in the United States District Court for the Northern District of Mississippi. Represented by the Mississippi Center for Justice and Texas Rio Grande Legal Aid, the plaintiffs allege that the employers defrauded workers and the federal government when the employers claimed that the H-2A visa holders would perform agricultural labor but instead required them to work 95 hours per week as heavy tractor trailer truck drivers. This fraud allowed the employers to pay workers well below the prevailing wage. The complaint seeks declaratory relief as well as compensatory and punitive damages.
DOL Fines Maine Grower More than $300,000
The Department of Labor has ordered a Maine tomato grower to pay $245,000 in backpay to more than 100 workers as well as $92,000 in penalties. DOL issued this order after finding that the grower had illegally fired U.S. workers in order to replace them with H-2A temporary agricultural workers. The Department further found that the grower had failed to provide workers with a copy of their work contracts and had paid U.S. workers less than their H-2A counterparts.
Farmworker Health and Safety
Heat Stress Bill Introduced in House and Senate
The Asunción Valdivia Heat Illness and Fatality Prevention Act of 2021 was introduced in both the House and Senate last month. Senators Sherrod Brown (D-OH), Catherine Cortez Masto (D-NV), and Alex Padilla (D-CA), as well as Representatives Judy Chu (D-CA), Robert Scott (D-VA), Alma Adams (D-NC), and Raúl Grijalva (D-AZ) are championing the bill.
If passed, the legislation would: (1) require the Occupational Safety and Health Administration (OSHA) to issue a federal standard for heat stress protection; (2) guarantee paid breaks for workers who are exposed to high heat; (3) require that employers take specific steps to prevent heat stress and implement emergency measures to protect workers when heat illness does occur; and (4) protect workers from retaliation or discrimination if they report violations or otherwise exercise their rights under the bill. As climate change leads to increasingly extreme temperatures, farmworkers are placed in greater danger on the job. Federal lawmakers must act quickly to protect the nation’s farmworkers. Farmworker Justice has worked extensively with the United Farm Workers, Public Citizen and other partners to support this important legislation.
Lawmakers Reintroduce Environmental Justice For All Act
Senator Tammy Duckworth (D-Il), Representative Raúl Grijalva (D-AZ), and Representative A. Donald McEachin (D-VA) reintroduced the Environmental Justice for All Act (S. 872) (H.R. 2021) on March 18, 2021. If passed, the legislation would require federal agencies to take critical steps to achieve environmental justice, create a pathway into court for individuals and groups to sue federally funded projects that engage in environmental discrimination, and direct funds towards communities that are moving away from environmentally destructive industries. Farmworker Justice supports this legislation as an important step in protecting communities—including farmworkers—that are most vulnerable to the effects of climate change.
Doug Parker Nominated to Lead OSHA
President Biden announced that he intends to nominate Doug Parker to head the Occupational Safety and Health Administration (OSHA). Parker has a lengthy background in worker safety. He currently serves as the chief of California’s Division of Occupational Safety and Health (Cal/OSHA), where he has overseen California’s implementation of worker protections during the COVID-19 pandemic. Previously, he served as the Deputy Assistant Secretary for Policy in the Mine Safety and Health Administration; as the executive director of California legal services provider, Worksafe; and as a staff attorney at United Mine Workers of America. If confirmed as the Administrator of OSHA, Parker will be responsible for protecting workers across the country from COVID-19 and many other workplace hazards.
OSHA Invites Comments on Whistleblower Program
The Occupational Safety and Health Administration (OSHA) announced that it will hold a public meeting to consider how it can improve its whistleblower program on May 19, 2021 at 1pm (ET). OSHA is specifically interested in feedback on:
- “How can OSHA deliver better whistleblower customer service?”
- “What kinds of assistance can OSHA provide to help explain the agency’s whistleblower laws to employees and employers?”
- “What can OSHA do to ensure that workers are protected from retaliation for raising concerns related to the pandemic?”
Report Highlights Paid Leave Disparity
The National Partnership for Women and Families released an issue brief, Called to Care: A Racially Just Recovery Demands Paid Family and Medical Leave, in March. The brief highlights “how the lack of national paid leave has exacerbated harms to the health and economic lives of people of color, particularly women, before and during the pandemic.” It also includes a list of recommendations for what must be included in a federal or state paid family and medical leave plan to ensure that the most vulnerable workers are not excluded.
Maryland Passes Law Protecting Essential Workers
This month, Maryland passed the Maryland Essential Workers’ Protection Act (HB 581/SB 486), which establishes a mandatory emergency temporary standard for farmworkers and other essential workers. It will require employers to take certain steps to protect workers’ safety and health during emergencies such as a pandemic, will protect workers’ who refuse to perform dangerous tasks, and will require the Maryland Department of Health to collect and publish certain test results. The Act is an important—if belated—first step in protecting the people who have continued to show up to work each day during the deadly COVID-19 pandemic. Advocates continue to call on the Maryland legislature to pass migrant worker housing standards, hazard pay requirements, and paid sick and bereavement leave protections.
New York State Considers Phasing Out Chlorpyrifos
On March 30, 2021, New York held a public comment hearing on its proposed regulations to phase out the highly toxic pesticide, chlorpyrifos, by July of this year. Farmworker communities face immediate risk of exposure to chlorpyrifos when it drifts from fields into homes, schools, and other community spaces. As Farmworker Justice explained in a comment submitted in support of the proposed regulation, “a growing body of scientific literature has shown that chlorpyrifos can harm brain development in children and that prenatal exposure can lead to cognitive and behavioral deficits as well as neurological disorders.” Farmworker Justice, which has been litigating to win a federal ban on chlorpyrifos and supporting state-level efforts to prohibit the toxic pesticide, urges New York and other states to act quickly to protect workers, their families, and their communities.
ACA Enrollment Period Extended to August
The Biden Administration has extended the special enrollment period for health insurance in the federal marketplace under the Affordable Care Act (ACA) to August 15, 2021. The American Rescue Plan increased availability of subsidies for ACA insurance plans. Individuals can visit healthcare.gov or cuidadodesalud.gov to enroll. State marketplaces have their own COVID special enrollment periods. Visit the state marketplace website for more information.
HRSA Clarifies COVID Vaccine Eligibility
The Health Resources & Services Administration, an agency of the U.S. Department of Health and Human Services, has released a fact sheet (available in Spanish and English) clarifying eligibility requirements for COVID-19 testing, treatment, and vaccination. As the fact sheets state, although providers may ask for identifying information, including a social security number, patients do not need to provide this information to obtain services. Testing, treatment, and vaccines are available to everyone, for free, regardless of their immigration status. Health centers across the country are participating in the COVID-19 vaccine program to ensure vaccines are accessible to all who seek them.
Special Event Presented by Farmworker Justice: “Dolores Huerta in Her Own Words”
Farmworker Justice will be hosting a very special—and free—online event on April 28 at 4:00 p.m. P.T / 7:00 p.m. E.T. You can register for, “Dolores Huerta: In Her Own Words” in advance. Bel Hernandez, CEO of Latin Heat Media, will moderate the event. The readers are a stellar group of actors from the El Teatro Campensino original productions of the ground-breaking play and film, Zoot Suit, by Luis Valdez: Julie Carmen, Enrique Castillo, Alma Martinez, Ph.D., Pepe Serna, and Edward James Olmos. A panel discussion led by Bel Hernandez will include Dolores Huerta (Dolores Huerta Foundation); Luis Valdez, founder of El Teatro Campesino, playwright and director; and Bruce Goldstein, President of Farmworker Justice. This event is made possible with the generous support of the California Community Foundation.