Farmworker Justice Update - 06/07/19

Farmworker Justice Update: 06/07/19

Dream and Promise Act Passed in House

On June 4, the U.S. House of Representatives passed the “American Dream and Promise Act of 2019,” H.R. 6, by a vote of 237-187. The bill provides critically needed immigration protections and a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients. Passage of the bill is an important first step towards fixing our broken immigration system. You can read FJ’s press release on the bill’s passage here.

New Bill Proposes Temporary Immigration Status for Year-Round Agricultural Workers

On May 16, Rep. Chris Collins (R-NY) introduced the “Helping Labor Personnel on Farms Act,” H.R. 2801. The bill only has 4 co-sponsors. The “HELP Farms” Act would allow current undocumented agricultural workers in year-round employment, who have worked for their employers for at least two years, to adjust their status to a two-year, non-renewable temporary work permit. Eligible workers include those in year-round agricultural industries, such as dairy, sheepherding, livestock, equines, beekeeping, meat processing and seafood processing. Within two years after enactment, the bill directs the Department of Labor (DOL) to issue regulations under the H-2A program to include work that is done on an annual rather than seasonal basis.

The bill is short-sighted, unrealistic and unfair.  It recognizes that there is an experienced, undocumented agricultural labor force that needs work authorization, but then offers only a limited temporary work permit, with no path to citizenship. The two-year temporary permit is non-renewable, meaning that an employer would lose its experienced farmworkers after this period.  Workers would then have to either return to their homeland or remain in the U.S., once again in undocumented status. Without any assurances of the continued ability to remain in the U.S. many workers would be reluctant to come forward to apply for this temporary status. This most recent H-2A expansion bill highlights the way in which too many politicians and employers view agricultural workers: as disposable inputs. Immigration status should not be a mere tool for conveniently acquiring or disposing of farmworkers. Legislators need to think about the real-life impact of these policies on farmworkers and their families.  

New York Court Rules Farmworker Collective Bargaining Exclusion Unconstitutional

On May 23, the state appellate court in New York declared that a state labor law excluding farmworkers from the right to organize and collectively bargain violates the state constitution’s guarantee of that right to working people.  The decision resulted from a case brought in 2016 by dairy worker Crispin Hernandez, along with the Workers Center of Central New York and the Worker Justice Center of New York, represented by the New York Civil Liberties Union. To their credit, the NY Governor and Attorney General declined to defend the state law in court. However, the New York Farm Bureau intervened to defend the exclusion. A lower court had initially dismissed the workers’ case in 2018, leading to the successful appeal. The Farm Bureau is expected to appeal the recent decision to the state’s highest court, the Court of Appeals.

New York Legislation on Equal Labor Rights for Farmworkers Still Pending

The NY state litigation is particularly timely given that the New York legislature is currently considering passage of the Farmworkers Fair Labor Practices Act, which would codify agricultural workers’ right to organize and collectively bargain, among other important labor rights protections such as the right to overtime pay. As stated in a recent NY Daily News article, if advocates and consumers really care about food policy, they must ensure that those who actually grow our food are treated with the basic dignity they deserve. An upstate New York newspaper recently published a letter to the editor by FJ President Bruce Goldstein, who criticized an editorial that opposed the legislation as being “rushed.” The letter pointed out that farmworkers have been waiting since the 1930s for the labor protections other workers have been granted.

Dairy Workers in Washington Doubly Damaged

A large dairy operation called Mensonides Dairy in Mabton, Washington was sued by its employees for wage theft and then filed for Chapter 11 bankruptcy so that it could reorganize.  The ability of the farmworkers to ever collect their stolen wages is in doubt. The United Farm Workers is assisting the workers. A Yakima Herald article about the case was helpful publicity but mentioned low milk prices for dairy farmers. The paper later published a letter to the editor by FJ’s Bruce Goldstein rejecting the implication that low milk prices might explain wage theft and criticizing the unbalanced discussion of economic issues.  The letter, noting that these abuses arose at dairy farm that belongs to the Darigold system, called for greater corporate responsibility in the dairy supply chain.

DOL Conducting Education Campaign for Agricultural Employers in Southeast U.S.

DOL WHD recently announced that it is engaged in an education and enforcement initiative to boost compliance by the agricultural industry in the Southeastern U.S., including the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. From January 2018 through March 2019, WHD investigators found violations in 90% of the 345 investigations of agricultural employers they concluded. As a result of these investigations, 20 Southeast growers and farm labor contractors have been debarred from the H-2A program.

Human Trafficking Case Involving Mexican Workers in Wisconsin and Georgia

Several recent cases highlight the vulnerability of H-2A guestworkers and the prevalence of abuses in the program. Last month, a federal indictment was filed in a case of human trafficking involving workers in Wisconsin and Georgia. Five people who worked for the labor contracting entities “Garcia & Sons” and “C & D Harvesting,” have been charged for actions including threatening workers, confiscating their passports, and giving them fraudulent resident cards and social security numbers. Some of the workers were at Wisconsin-based Borzynski Farms, which has stated they did not know the workers were being abused and that the farm is no longer working with these labor contractors. Moore Farms in Georgia was also a client, but the farm owner stated he did not believe the contractors were abusing the workers. The application filed for the workers stated that they would be working in Georgia, but they were then transported to Wisconsin. The charges came after a multiyear human trafficking investigation by several law enforcement agencies including the FBI, the DOL Office of Inspector General, Homeland Security Investigations (HSI) and the Racine Police Department. United Migrant Opportunity Services (UMOS) provided emergency assistance and support to the workers.

Georgia H-2A Workers Subject to Terrible Living and Working Conditions

The Southern Poverty Law Center (SPLC) is representing three guestworkers in an administrative complaint against their employer. Two of the workers report being subject to sexual harassment by their employer, a South Georgia contractor, on multiple occasions, with the final incident occurring at gunpoint. The three guestworkers were recruited from Mexico to harvest blueberries, but unbeknownst to them, would also be required to work in tobacco and pine straw harvesting. The employer’s violations against the workers include illegally charging recruitment fees, illegal wage deductions for housing and visa charges, wage theft, dangerous working conditions, inadequate housing conditions, gender discrimination, sexual harassment and retaliatory threats. This case is reflective of the abuse and exploitation guestworkers are too often subjected to by their employers. The three guestworkers seeking legal action want to prevent the contracting company from exploiting other workers in the future.

Recent DOL Enforcement Actions against Agricultural Employers

A recent DOL Wage and Hour Division (WHD) investigation revealed systemic violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) as well as the provisions of the H-2A program by various Arizona labor contractors. As a result, a U.S. District Judge ordered Cargo LLC and Christian Gomez Bueno to pay $48,771 in civil penalties and $26,229 in back wages. The judge also barred Jose Carlos Gomez, who is Gomez Bueno’s father and did business as Union Harvest, from ever again serving as a farm labor contractor. The defendants failed to provide employees with safe transportation, including egregious vehicle safety hazards such as worn tires, missing mirrors, faulty lights, and inoperative horns. They also failed to pay employees all the wages they had earned when due and to maintain accurate records of hours worked, among other violations.

 Another recent investigation involved the DOL’s Occupational Safety and Health Administration (OSHA), which recently cited Duda Farm Fresh Foods Inc. of Florida for exposing employees to workplace safety hazards. Among other violations, OSHA found that the company failed to provide the required respirator fit test and safety training to employees operating ammonia refrigeration systems. The company faces $95,472 in penalties after a worker required medical treatment due to an anhydrous ammonia leak in the farm's packing house. The investigation was done pursuant to an OSHA National Emphasis Program focused on facilities with highly hazardous chemicals.

Update on Farmworker Health and Safety

Idaho Farmworkers Exposed to Toxic Substance

        Over Memorial Day weekend, a group of farmworkers and their families were exposed to a toxic substance, resulting in over 20 people having to receive medical treatment. The specific toxic substance has not yet been determined, but the Idaho State Department of Agriculture is currently investigating the incident. The patients suffered flu-like symptoms and one of them became unconscious. Some of the workers, who had showered and changed after arriving home from work, had less severe symptoms. The workers told investigators that they had not received any training on pesticide safety. As mentioned in the article describing the incident, the recently revised federal Worker Protection Standard (WPS) requires that workers be provided with pesticide safety information, including information about how to limit take-home exposure.

California State Assembly Passes Farmworker Housing Act of 2019

        On May 24, the California State Assembly passed A.B. 1783, a bill intended to address the housing shortage among farmworkers in the state. The bill would streamline the building of farmworker housing on agricultural land. Under the bill, state financial support of farmworker housing will be focused on family-oriented projects and the state of California will be prohibited from funding housing for H-2A workers. To qualify, the farmworker housing must be managed by an approved nonprofit and meet a number of requirements aimed at ensuring it is suitable. Supporters of the legislation include sponsor United Farm Workers, the Center for Farmworker Families, Santa Cruz and San Benito counties, and the city of Salinas. The bill will now be sent to the California State Senate for approval.

Public Water Systems in Some California Farmworker Communities Serve Unsafe Water

 As detailed in a recent article in The New York Times, low-income farmworker families in California’s Central and San Joaquin Valleys’ home tap water systems spew toxic water contaminated by chemical fertilizers, dairy manure, and arsenic, while the crops around them have access to sophisticated irrigation systems. According to data from the California State Water Resource Control Board, more than 300 public water systems expose more than one-million Californians to unsafe drinking water. The majority of affected residents belong to small communities who are unable to support the costs necessary to alleviate the problem. Governor Newsom has proposed a tax on urban water districts and the agriculture industry to redevelop the infrastructure in districts with unsafe water, but the proposition has received significant pushback.

Farmworker Justice Award Reception

Please join us for Farmworker Justice’s Award Reception on June 13, at The Hamilton Hotel in Washington, D.C.  Honorees include Arturo Lopez, Diana Tellefson and Earl Dotter. More event details are available on our website. Your support makes possible our work on labor rights, occupational safety, immigration, health and access to justice.