Farmworker Justice Immigration Update: September 6, 2016

California legislature passes OT bill for farmworkers, now Governor Brown must sign bill to help end discrimination against farmworkers
On August 27, farmworkers achieved a significant victory when the California legislature passed a bill that over several years would phase in time-and-a-half pay for working more than 8 hours a day and 40 hours in a week in agriculture. Under federal law, farmworkers and their employers are excluded from overtime pay; and under current California law, overtime need only be paid if farmworkers work more than 10 hours a day or 60 hours in a week. We congratulate the coalition that won this legislative battle after a defeat just weeks earlier. The United Farm Workers brought many farmworkers to the state capitol, Sacramento, to demonstrate their support for equal treatment and overtime pay.

The bill now awaits Governor Jerry Brown’s signature to become law. Governor Brown should sign the bill to provide farmworkers with this important benefit and to continue the process of reducing discrimination in employment laws against agricultural workers. Overtime pay for farmworkers: it’s time. To read more, see our blog post here.

California grower ordered to pay $2.4 million for violations of H-2A program rules
Fernandez Farms, Inc., a California-based strawberry farm, and its president Gonzalo Fernandez, were fined $2.4 million by an Administrative Law Judge for violations of the H-2A program rules. The order included roughly $1.1 million in payment to the workers for unlawful kickbacks, failure to provide free housing, multiple wage violations, threatening and coercing H-2A workers, and discriminating against US workers, among other violations; and a civil money penalty of almost $1.3 million for the H-2A violations. In addition, Fernandez Farms and its president were barred from participation in the H-2A program for the maximum period of three years. We applaud DOL for their investigation despite continued resistance from Fernandez and his family members. We also commend the work of CRLA and CDM for their support to the impacted workers and the DOL.

While the ALJ decision is a victory for the impacted workers, the case is deeply troubling for the abuses it reveals. As we have shared in prior updates, H-2A workers are extremely vulnerable to abuse and exploitation because they can only remain and work in the U.S. for the one employer who brings them here. Fernandez, for example, felt that he could intimidate his H-2A workers into silence during the Department of Labor investigation. This case illustrates the kinds of abuses we can expect to see more of as the H-2A program use continues to grow rapidly. As DOL trial attorney Abigail Daquiz notes, “We’re finding that in lots of different ways, employees are having to pay that [transportation and recruitment costs] back, being forced to kick it back.” The H-2A program protections and DOL’s oversight are important tools to try to prevent worker abuse, but more is needed. Agribusiness complaints about the H-2A program “bureaucracy” and overly burdensome rules demonstrates their interest in reducing even these minimum protections.

And while we commend the maximum debarment for Fernandez Farm and its president, we are troubled that Fernandez’s sister, Celia, a former supervisor at Fernandez Farms who was accused of involvement in the case, has been approved to receive H-2A workers this year. According to the LA Times article, her farm is a newly incorporated company at the same address as the former Fernandez Farms, which filed for bankruptcy. DOL must do more to debar bad actors and their successors to send a message that growers must comply with the law in order to have access to the H-2A program.

Donald Trump much anticipated speech on immigration more of the same anti-immigrant rhetoric
In a highly promoted speech on immigration following weeks of hints that he may soften his position on immigration, Trump continued to invoke anti-immigrant rhetoric and repeated his call for a border wall paid for by Mexico. Trump’s proposals for immigration would only worsen our broken immigration system, including by ending sanctuary cities, ending President Obama’s DACA and proposed DAPA programs, yet failing to provide a realistic and humane solution for the millions of hard-working aspiring Americans. We are deeply troubled by Trump’s continued broad brush characterization of undocumented individuals as criminals and his lack of respect for our nation’s diversity. We will continue to monitor and report on both presidential candidates’ positions on immigration.