Farmworker Justice Update: 05/24/18

Farmworker Justice Update: 05/24/18

Farm Bill Defeated in House, New Vote Possible Next Month  

On May 18, the U.S. House of Representatives voted on and failed to pass the Farm Bill, legislation that sets aside money for farm subsidies, rural development, and environmental conservation programs, as well as nutrition programs. Democrats opposed the bill because it sought to make detrimental changes to the Supplemental Nutrition Assistance Program (SNAP), as well as weaken environmental conservation provisions. In addition to opposition from Democrats, the Farm Bill was also rejected by members of the conservative “Freedom Caucus” of the Republican Party, though for different reasons. The Freedom Caucus had demanded a vote on Rep. Goodlatte’s (R-VA) anti-immigrant, anti-worker immigration bill before voting on the Farm Bill. Although Speaker Ryan had promised a vote on the Goodlatte immigration bill, the vote did not take place. Shortly after the failed Farm Bill vote, House Majority Whip Steve Scalise (R-LA) announced that the House may take a new vote on the Farm Bill in June.

Farmworker Justice opposed the Farm Bill, not just for its provisions on nutrition and environmental issues, but also for its inclusion of a re-authorization of the Pesticide Registration Improvement Act ("PRIA 4") for a period beyond the three-year reauthorization period that was approved by the Senate Ag Committee. The reauthorization period was shortened to three years due to serious concerns about recent actions by the Environmental Protection Agency (EPA) to potentially weaken the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators (CPA) rule. PRIA provides funding to EPA for expedited processing of pesticide approval applications and also sets aside funds to support EPA’s worker protection programs. Rolling back these WPS and CPA rules would thereby undermine the basis for FJ’s support for PRIA re-authorization.

Goodlatte Bill Could Be Voted on Prior to Farm Bill in June

The House may also hold a June vote on Rep. Goodlatte’s immigration bill, the “Securing America’s Future Act,” H.R. 4760. Goodlatte’s bill includes the Agricultural Guestworker Act (AGA), although changes may be made to this section of the bill, as well as other provisions, in order to garner more support in the lead-up to the vote. Farmworker Justice will continue to monitor any changes to the bill and work to oppose this virulently anti-immigrant and anti-worker piece of legislation. The decision by House Republican leadership to bring the Goodlatte bill to a vote was partly a result of the Farm Bill dynamics described above, but also a response to a growing discharge petition proposed by Rep. Denham (R-CA) which would bring four immigration bills, including various potential solutions for DACA recipients, to the floor of the House if leadership does not act. The petition needs 218 signatures to move forward. As of yesterday (May 23), 205 Representatives had already signed it. Pursuant to Congressional rules, however, the earliest possible date for a vote on the bills if the petition is successful would be June 25.

Proposed Changes to the H-2A Program Include Online Portal Controlled by USDA

On May 16, as part of the mark-up of the FY 2019 House Agriculture Appropriations bill, Rep. Newhouse (R-WA) introduced an amendment that would establish a new online platform for the processing and adjudication of H-2A petitions, to be run by the U.S. Department of Agriculture (USDA). Farmworker Justice is concerned about the potential adoption of this amendment in the final FY 2019 appropriations bill for various reasons.  Pursuant to existing statutory authority, the Department of Labor (DOL) has certification authority and the primary responsibility for ensuring the labor market test is met by employers (i.e. that there are no US workers available and that bringing in foreign workers will not adversely affect wages and working conditions). USDA does not have the required expertise regarding administering guestworker programs and has historically viewed growers as their constituents instead of workers.  Additionally, current political appointments and staff at USDA include several former agribusiness lobbyists who worked on the H-2A program from the employer perspective. Furthermore, the amendment language is very vague and could open the door to harmful changes such as limiting government oversight of the application process. Finally, the amendment is one-sided and states that the platform will provide transparency to employers but does not address needed transparency for workers. As mentioned in previous updates, last year the Trump Administration created an inter-agency working group on the H-2A program composed of officials from USDA, DOL, the Department of State, and the Department of Homeland Security (DHS). According to agribusiness representatives, the working group may provide its conclusions soon. 

Government Agencies Highlight Focus on Protecting U.S. Workers in Visa Programs

On May 8, DOL’s Wage and Hour Division announced a new initiative for the states of Florida, Kentucky, North Carolina, and South Carolina which seeks to strengthen employers’ compliance with H-2A and H-2B visa requirements, particularly the requirement that employers recruit U.S. workers before applying for temporary foreign workers. On May 11, the Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) announced a memorandum of understanding (MOU) aimed at eliminating fraud, abuse, and discrimination against U.S. workers by employers hiring foreign visa workers. The agreement is part of the “Protecting U.S. Workers Initiative,” which is focused on protecting U.S. workers from discrimination by employers in favor of foreign visa workers, in  accordance with the “Buy American, Hire American” executive order issued by President Trump last year. The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers.

DOJ Announces Indictment for Fraud and Illegal Fees in H-2A Visa Program

On May 17, the DOJ announced the arrest and indictment of three men in California accused of misleading and charging illegal fees to workers seeking H-2A temporary agricultural visas. Individual workers were charged as much as $3,000 to obtain their H-2A visas and were charged for housing and transportation. The defendants also made false promises to the workers about the duration of their visas. The charges brought against the defendants include visa fraud, mail fraud, conspiracy and fraud in foreign labor contracting. This case is illustrative of the need for greater enforcement of the H-2A program’s current protections as well as why these limited protections are needed to combat fraud and abuse. Any expansion or weakening of the H-2A program, such as the changes proposed in the Goodlatte immigration bill, would be devastating to workers and their ability to obtain justice for abuses under this program. 

Supreme Court Decision on Arbitration Denies Workers’ Day in Court

On May 21, the Supreme Court ruled that employers may impose employment contracts that prevent workers from bringing class action lawsuits on behalf of large groups of workers.  The 5-4 decision means that an employer that violates the labor rights of a group of workers can enforce a contractual provision that forces each affected worker to file an individual request for a private arbitration.  Class action lawsuits for violations of the minimum wage, gender and age discrimination, and employment contracts have been efficient mechanisms for obtaining remedies for systematic abuses that affect many employees. They are especially helpful in cases where each individual’s financial loss is small – as in many farmworker wage cases – and it is too costly to bring an individual case.  Additionally, many immigrants, both documented and undocumented, are reluctant to bring lawsuits due to their status or fear of job loss and retaliation. Such workers often have obtained a remedy because other workers were willing to step forward to bring a lawsuit on behalf of all affected workers.  Farmworker Justice has been counsel in numerous class action lawsuits over the years and is very concerned that this decision will cause widespread harm.  More employers will decide to impose forced arbitration clauses and fewer workers will be able to vindicate violations of their rights, which, in turn, will motivate more employers to violate the law.  Congress should respond by revising the Federal Arbitration Act of 1925 to overturn the Supreme Court’s fundamentally flawed interpretation of that law. 

Update on Farmworker Health and Safety

Recent Reports Detail Negative Impact of Immigration Policies on Children’s Health

Two recently released reports - one by the Center on Budget and Policy Priorities (CBPP) and the other by the Kaiser Family Foundation - detail how the Trump Administration’s immigration policies are having a negative impact on immigrant children’s health and development. In 2016, approximately 18 million children under the age of 18, or about 1 in 4 children in the U.S., lived with at least one immigrant parent. These children are at a higher risk of toxic stress and anxiety directly as a result of the current Administration’s immigration policies. A leaked draft of a not yet proposed rule that is expected to be published soon, known as the “public charge” rule, will likely broaden the list of benefits and assistance that could be considered when determining admission to the U.S. or an immigrant’s adjustment of status to an LPR.  The potential list of benefits include Medicaid, the Children’s Health Insurance Program (CHIP), ACA subsidies, the Women, Infants and Children (WIC) nutrition program, and the Supplemental Nutrition Assistance Program (SNAP), among others. According to the 2013-2014 NAWS, 45% of farmworkers have minor children, with 82% of children covered by government-provided health insurance. Under the potential new rule, the public charge determination could include not only benefits used by the applicant but also benefits used by dependents, including U.S. citizen children. The coverage losses that could result from the rule would in turn contribute to even worse health outcomes for immigrant children.