Farmworker Justice Update - 06/08/18

Joint Cabinet Announcement on “Modernization” of the H-2A Program

On May 24, the Secretaries of State, Homeland Security, Agriculture and Labor issued a joint cabinet statement on the H-2A agricultural worker visa program. The brief statement notes that the departments are working in coordination to “modernize” and “streamline” the H-2A program, though it does not mention specific changes to the program. As noted in our press release, Farmworker Justice is concerned that the Administration plans to eliminate or reduce the H-2A program’s critically important protections, which are still not sufficient to prevent labor rights violations by employers. For example, just a week after the joint announcement, a Kentucky farmer was barred from using the program after failing to pay workers over $50,000, including failing to reimburse workers for their transportation. Weakening the H-2A program’s limited protections will likely increase the incidence of wage theft under the program, as well as reduce workers’ overall pay. It will also make it even less likely that bad actors will be able to be identified and sanctioned. Among the protections that could be vulnerable are wage determinations, seasonality requirements, and housing and transportation standards.

H-2A Workers Face Abuse and Human Trafficking

A recent two-part series by David Bacon details some of the exploitative living and working conditions that pervade the H-2A visa program, as well as the worker displacement caused by increased use of the program by agricultural employers. Additionally, a new Polaris report on human trafficking in temporary work visa programs shows that the H-2A agricultural visa program had the highest number of reported human trafficking cases of any visa category during the two-year period covered in the report, with over 300 cases. The data is based on calls made to the National Human Trafficking Hotline, which means that the real number of human trafficking cases under the H-2A visa program is probably much higher given the underreporting that characterizes this issue.

Over 100 People Detained in Ohio Worksite Raid

On June 5 ICE raided an Ohio gardening and landscaping company, detaining a total of 114 people. Many of those detained were women, and dozens of the workers’ children were left stranded at daycare facilities. ICE is also allegedly investigating the employer, but has not yet filed charges against the family-owned business, which includes a greenhouse. The Farm Labor Organizing Committee (FLOC) and Advocates for Basic Legal Equality (ABLE) denounced the raids and are working to meet with the workers who were detained. On the day of the raid, the Ohio Landscape Association asked Congress to issue additional H-2B guestworker visas, yet made no mention of the need to pass comprehensive immigration reform for the many undocumented workers who are already doing this work. It makes little sense to allow employers to hire more guestworkers without first addressing the need to legalize the current workers who are already in this country and have deep ties to their communities.  

House Republicans Negotiating Potential Deal on Immigration

Yesterday, Republicans held a closed-door meeting on immigration, during which House Speaker Paul Ryan reportedly vowed to work on an immigration bill, but the details of a potential proposal remain unclear. Republican moderates, along with Democrats, have been pushing for a discharge petition that would allow them to force a vote on several immigration-related bills later this month if House leadership does not act. The petition needs 218 signatures and already has 215. If Republican leaders do not reach an agreement among themselves, then momentum to secure the additional 3 votes needed for the discharge petition could increase. If the discharge petition is successful, it would trigger votes on four separate immigration bills, including the DREAM act, the Hurd-Aguilar bill, Rep. Goodlatte’s immigration bill and another bill of the Speaker’s choosing. As we have explained in the past, Rep. Goodlatte’s anti-immigrant “Securing America’s Future Act” includes his Agricultural Guestworker Act, which is so extreme that even some agribusiness groups do not support it.

“Zero Tolerance” Policy, Family Separation and ORR Monitoring

Last month, Attorney General Jeff Sessions announced a “zero tolerance” policy for individuals apprehended at the border. Although the policy is focused on criminal prosecution, the practical impact of the policy has been an increase in family separations. Parents who are detained are being separated from their children, who are then put into the custody of the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR). In a separate but somewhat related development, in April 2018 an ORR representative testified that ORR was unable to confirm the whereabouts of approximately 1,500 children.  Although news reporting described these children as “lost” or “missing,” technically this just means that the government was unable to confirm their whereabouts through phone calls made during a specific period of time. This distinction is important because the children could still be with their sponsors or family members.

The different issues surrounding family separation and children in ORR custody are explained in a recent summary - available in English and Spanish - by Kids in Need of Defense (KIND) and the Women’s Refugee Commission (WRC), along with specific advocacy and policy recommendations for addressing this self-made child welfare crisis. Even before the “zero tolerance” policy was announced by Sessions, advocates had seen an increase in cases of family separation. The New York Times reported that 700 children were separated from an adult claiming to be their parent from October 2017 to April 2018, more than 100 of whom were under the age of 4. These numbers are continuing to grow exponentially. Just in the two-week period between May 6 and May 19, more than 600 families were separated. Once separated, it is extremely difficult for parents and children to locate, communicate, and be reunited with each another.

Update on Farmworker Health and Safety

Farmworker Justice and Others Sue EPA Regarding WPS Notice Requirements
On May 30, Farmworker Justice and Earthjustice, on behalf of Alianza Nacional de Campesinas, Comite de Apoyo a los Trabajadores Agricolas (CATA), Pineros y Campesinos Unidos del Noroeste (PCUN), Rural & Migrant Ministry, and the Worker Justice Center of New York, filed a lawsuit against the Environmental Protection Agency (EPA) for its failure to issue a notice of availability of revised training materials under the Agricultural Worker Protection Standard (“WPS”). The agency is required to issue a public notice regarding the availability of the materials before it can mandate compliance with the new training requirements. Thus, EPA’s failure to publish the requisite notice is delaying information farmworkers need to stay safe. The Attorney Generals of the states of New York, Maryland and California filed a similar lawsuit against the EPA on the same date in the same federal court in New York.

STARS Act Seeks to Exclude Seasonal Workers from Health Care Coverage

The Simplifying Technical Aspects Regarding Seasonality (STARS) Act (S. 2670) was introduced by Sen. Roy Blunt (MO) in April 2018. A similar bill was introduced in the House (H.R. 3956) by Rep. James Renacci (OH) last October. The STARS Act was previously introduced in 2014. This bill would exclude seasonal full-time employees from being considered “full-time” employees for purposes of the employer mandate under the Affordable Care Act (ACA). Employers, therefore, would not count seasonal employees (defined as customary seasonal employment of 6 months or less) towards the ACA’s employer mandate. Further, seasonal employees would not have to be offered health insurance by applicable large employers. Applicable large employers are defined as employers with more than 50 full-time employees.

Currently, seasonal employees are counted towards the applicable large employer determination. Applicable large employers are also required to offer health insurance to seasonal employees. While there is a seasonal worker exception under the ACA's employer mandate, this exception is narrowly defined to exclude employers only when their workforce over the 50+ threshold are seasonal workers who work for fewer than 120 days in a calendar year. In the regulations, the terms seasonal worker and seasonal employee are two separately defined terms used for different purposes. Farmworker Justice opposes any efforts to restrict farmworker access to employer-provided health insurance. By exempting more employers from their responsibility to offer health insurance, farmworkers’ access to health care would be further diminished. FJ will continue to monitor this legislation. If you would like more information about the employer mandate and agriculture, please contact Alexis Guild, FJ's Senior Health Policy Analyst at [email protected].

Farmworker Justice Award Reception

Farmworker Justice held its annual Farmworker Justice Award Reception in Washington, D.C. on Tuesday, June 5.  The sponsors and host committee are listed on our website’s special events page. The awardees were:

•           Maricela Morales, Executive Director of Central Coast Alliance for a United Sustainable Economy (CAUSE), mobilizing around a farmworker bill of rights in Ventura and Santa Barbara Counties and a collaborator with Farmworker Justice.

•           John Quiñones, Journalist with ABC News and Anchor of “What Would You Do?,” author of “Heroes Among Us: Ordinary People, Extraordinary Choices,” winner of seven Emmy Awards and a former migrant farmworker who has never forgotten where he came from.

•           Tom Udall, U.S. Senator from New Mexico, who has been a leader in the effort to help farmworkers and their children achieve reasonable protections against poisoning from toxic agricultural pesticides.

           Visit our Facebook page for a few photos of the inspiring reception, courtesy of photographer Earl Dotter.