Farmworker Justice Update 10/27/17

Agricultural Guestworker Act Passed in House Judiciary Committee  

On Wednesday, after multiple hours of debate over the course of two days, the House Judiciary Committee narrowly passed Chairman Bob Goodlatte's (R-VA) Agricultural Guestworker Act, HR 4092, by a vote of 17-16. Rep. Goodlatte’s bill would create a massive new anti-worker, anti-immigrant guestworker program – the H-2C program – to replace the current H-2A temporary guestworker visa program. The H-2C program would reach far beyond the H-2A program to year-round agricultural work, as well as work in industries such as food processing, forestry and aquaculture.

The markup was contentious, with 19 amendments offered and debated.  Many of the Democratic members present highlighted the negative impact this bill’s limited protections would cause to U.S workers’ jobs, wages and working conditions, as well as concern about the harm it would cause the current undocumented workforce and future guestworkers. While the vote was mainly along party lines with 14 Democratic Representatives voting against the bill, Representatives Steve King (R-IO) and Louie Gohmert (R-TX)—both of whom are immigration restrictionists— also voted against the bill; 5 Republicans did not vote.  The amendments offered are available on the HJC website by clicking on the “+” by the legislation: https://judiciary.house.gov/markup/markup-october-25/

The delay in the beginning of the mark-up and the abrupt and unexpected recess on Tuesday caused some to speculate that there were internal divisions in the Majority party regarding support for the legislation. As you may recall, the initial markup scheduled for the beginning of October was postponed amidst speculation that Rep. Goodlatte did not have the votes to move the bill out of committee.  Rep. Goodlatte subsequently revised the legislation to make it even harsher towards the undocumented and to lower the cap minimally, among other changes. Our summary of the bill is attached.

H-2C Program Strips Away H-2A’s Limited Worker Protections, Including Wage Requirements, Prompting Comparisons to Sharecropping and Indentured Servitude  

Various lawmakers, including Representatives Lofgren (D-CA), Jayapal (D-WA), Raskin (D-MD), Nadler (D-NY) and Johnson (D-GA) stressed throughout the markup that wages under the H-2C program would be abysmally low.  They pointed out that workers would start from a very low wage floor, would have 10% of their wages withheld, and could then see even more deductions from their pay for costs like transportation, recruitment fees, tools, protective clothing, and more, because of the bill’s language waiving FLSA protections for certain costs and deductions. Rep. Lofgren offered several amendments highlighting the lack of a real wage floor in the bill and seeking to reinstate FLSA protections. Unfortunately, her amendments, as well as those offered by the other members to restore the H-2A wage protections, (Rep. Conyers) require payment of an average wage (Rep. Nadler), and eliminate the 10% bond (Rep. Jayapal) were all rejected, largely along party lines.

In an implicit admission that the H-2C program’s substandard wage levels would depress wages in the areas covered by the program, Rep. Blake Farenthold (R-TX) introduced an amendment, which was adopted, establishing that certain meat and poultry processing jobs should be paid the prevailing wage. Rep. Farenthold refused Rep. Raskin’s request that he support similar wage protections for the other sectors covered in the bill, replying that he wanted to keep the amendment narrow. His amendment also narrowed the definition of agricultural labor for those in meat and poultry processing to those in the “killing of animals and the breakdown of their carcasses” and removed the language prohibiting the cap for meat and poultry workers from falling below 40,000.

Rep. Raskin (D-MD) introduced an amendment he entitled the “No Room at the Inn” amendment, seeking to re-establish the current H-2A requirement that employers provide housing to their agricultural workers. Rep. Raskin detailed the challenges that agricultural workers face in finding safe and affordable housing, particularly in remote rural areas. Along with Rep. Lofgren, he highlighted the potential for adverse health effects from a lack of sanitary and reliable housing, as well as the negative impact this could have on food safety. The amendment failed.

Several amendments also addressed the bill’s provisions restricting workers’ access to justice. Rep. Sheila Jackson Lee (D-TX) was highly critical of the bill throughout the debate, and offered an amendment to allow federally-funded legal services programs to represent H-2C agricultural guestworkers to protect their rights (as they now are under the current H-2A program).  Rep. Lamar Smith (R-TX) opposed the amendment, arguing that legal services attorneys use taxpayer money to harass farmers.  Rep. Johnson (D-GA) then introduced an amendment allowing H-2C workers to access the legal system without first having to go through mandatory mediation and forced arbitration, which would be prohibitively costly for most workers. Both amendments seeking to improve H-2C workers’ access to justice were defeated.

Rep. Johnson also spoke eloquently about the oppressive overall structure of the H-2C program, where workers will have to bear so many wage cuts and costs that they might end up earning very little or nothing at all and are in essence “paying for the privilege to come here and be exploited.” He likened the program to a hybrid of the systems of sharecropping and slavery, as well as indentured servitude, although he noted that “at least in indentured servitude you had the opportunity to work your way to freedom.”

Members Highlighted Impact of H-2C Program’s Lack of Protections on U.S. Workers’ Wages and Working Conditions

Beyond the bill’s likely terrible impact on the living and working conditions of foreign guestworkers, much of the debate around the bill also focused on the effect that the H-2C program’s lower wages and labor standards would have on the job security and working conditions of U.S. workers.

Several of the amendment highlighted the expansive scope of the new H-2C program and the fact it would reach many new occupations. Members debated, but did not pass, an amendment from Reps. Lofgren eliminate forestry work from the H-2C program—forestry.  During the debate on Rep. Farenthold’s meat and poultry amendment, Rep. Jayapal discussed, but did not offer, her much broader amendment that proposed to exclude meat and poultry processing and manufacturing jobs from the definition of agriculture under the bill.

Another aspect of the bill that fostered much discussion was the number of workers that could be brought in under the program. The bill text establishes a cap of 450,000 workers, which includes a 40,000 cap for meat and poultry processing workers. Rep. Jayapal introduced an amendment, which was voted down, limiting the total number of workers in the H-2C program at any one time to 450,000. She highlighted that the total number of guestworkers could reach into the millions given the many exceptions to the illusory 450,000 figure and the possible 10% growth each year.

Rep. Issa introduced an amendment seeking to allow the cap to increase by 15% each year instead of by 10%. However, a recess was called during the debate on his amendment and the markup did not reconvene until the following day, which began with Rep. Issa withdrawing the amendment, leading to speculation that it did not have enough support to pass.

Finally, Rep. Cicilline offered an amendment that would have eliminated the financial incentive that temporary, seasonal H-2C employers and some year-round jobs would enjoy by hiring H-2C workers over US workers due to the fact that they do not have to pay the FICA or FUTA taxes on their guestworkers’ wages. The bill requires most employers of year-round workers to pay a roughly equivalent amount—10%-—to a fund for administration of the program.  The amendment, which failed, would have required the same for all H-2C workers.

Bill’s Proposed “Solution” for Undocumented Workers Anything But

Although Chairman Goodlatte touted the bill as a way to address labor shortages in the agricultural sector, the bill does not provide a feasible solution for the more than one million undocumented workers currently doing this valuable work. As noted by both Rep. Gutierrez (D-IL) and Rep. Lofgren (D-CA), these farmworkers have been living and contributing to their communities for years and even decades, and many have families, including spouses, children and even grandchildren. One of the few proposed amendments to the bill that passed was a proposal by Rep. Handel (R-GA), requiring, among other things, that currently undocumented workers return to their home countries before being able to apply for H-2C visas. Rep. Gutierrez decried the bill’s cruel and unworkable plan for undocumented farmworkers to self-deport and come back as H-2C guestworkers who must separate from their families, without having a path to citizenship. Rep. Gutierrez presented the Agricultural Worker Program Act, which he introduced earlier this year, as an amendment to replace Goodlatte’s H-2C bill. His amendment and legislation would provide a workable and humane solution for our agricultural labor system, to the benefit of employers and undocumented farmworkers, while respecting the humanity and contributions of our nation’s farmworkers; however, it was also defeated.

Future of Agricultural Guestworker Bill Uncertain

Along with the Agricultural Guestworker Act, the House Judiciary Committee also approved the “Legal Workforce Act”, HR 3711, on Wednesday. The Legal Workforce Act would make employment verification (“E-Verify”)of work authorization mandatory for all employers. There is broad opposition to mandatory E-Verify legislation for a number of reasons, including flaws in the system and its implementation, as well as the fallacy of enacting mandatory employment verification in the absence of broader comprehensive immigration reform.  Among these opponents are agricultural employers, who have opposed E-verify efforts in the past due to the high proportion of undocumented farmworkers.  The bills were purposely scheduled together because the creation of the extremely one-sided H-2C program was intended to make agricultural employers less likely to push back against E-Verify and other immigration enforcement efforts.

The fate of the Agricultural Guestworker Act and whether it will be brought to the floor for a vote will ultimately be decided by Republican leadership.  The contentious debate in the Committee and the lack of unity among Republicans in their position on the bill may be factors Republican leadership considers. The immigration debate is currently focused (as well it should be) on the fate of DREAMers. Other issues beyond immigration, such as proposed tax reforms and budget negotiations, may also take up a significant portion of the legislative calendar in the near future.

Farmworker Justice will continue to monitor this bill and any attempts to bring it to a full floor vote. We hope you will help us to ensure that we do not take a significant step back for all workers by enacting the Agricultural Guestworker Act.