Farmworker Justice Update: 12/04/19

 

Immigration Policy: House Judiciary Committee Approves Farm Workforce Modernization Act  

            On November 21, 2019, the House Judiciary Committee passed the “Farm Workforce Modernization Act of 2019” (FWMA), H.R. 5038, following debate the day before. The bill would make substantial revisions to immigration law regarding agricultural workers and their employers. The bill was the product of negotiations among Democrats and Republicans as well as farmworker advocates and employer trade associations. The bipartisan bill currently has 27 Democratic co-sponsors and 24 Republican co-sponsors. The bill passed the Committee by a vote of 18-12, with all Democrats present voting for the bill and all present Republicans voting against. 

The challenges to achieving a compromise that passes Congress are evidenced in the proposed amendments submitted during the Judiciary Committee’s markup of the bill. Some proposed amendments would have imposed unacceptable obstacles in the bill’s path to immigration status and citizenship for undocumented farmworkers and their family members.    Some Committee members sought to lower wage rates and make other anti-worker changes in labor protections in the provisions revising the H-2A agricultural guestworker program. All of these harmful amendments were defeated by strong margins. While some supporters of the bill expressed their desire to improve the bill by making it more helpful to farmworkers, they voted for it as written because they recognized that the bill is the product of complex, delicate compromises.

            Farmworker Justice, which helped the United Farm Workers negotiate the bill, strongly supports this legislation. You can read a summary of the bill’s provisions here. Although the bill has extensive support among stakeholders in agriculture, there are some farmworker organizations and agricultural employer associations that, for various reasons, are opposing or remaining neutral on the bill. You may wish to read a critique by a longtime pro-farmworker journalist, David Bacon.    

USDA Releases Farm Labor Survey

            On November 21, the U.S. Department of Agriculture (USDA) released the annual results of its Farm Labor Survey. The FLS is based on surveys of farm employers. The findings regarding wages paid during FY 2019 are of particular interest because they will be used by the Department of Labor (DOL) to set the 2020 “adverse effect wage rate,” which is one of the minimum required wage rates under the H-2A agricultural guestworker program. The survey category used by DOL is the annual average wage for field and livestock workers combined. At the national level, the rate was $13.99, up 6 percent from the 2018 average of $13.25 per hour. The DOL issues wage rates for each state based on regional survey results, which ranged from $11.71 per hour to $15.83. States with the lowest rates included Florida and Georgia; the highest rates were in Oregon and Washington; California was at $14.77.

Employers of Sheepherders Will Only Be Eligible for Temporary H-2A Workers

On November 21, the Hispanic Affairs Project and Towards Justice announced a settlement reached with the federal government to protect sheepherders. In the case, Hispanic Affairs Project, et al. v. Scalia, 15-cv-01562 (D.D.C.), Hispanic Affairs Project challenged the practice of bringing sheep and goat herders to fill a permanent labor need under the H-2A program, which is limited to temporary or seasonal work. Under the terms of the settlement, DHS and DOL agreed to modify the rules governing the use of guestworker visas for foreign sheepherders working in the United States to ensure that the program is not being used for permanent employment. On November 14, U.S. Citizenship and Immigration Services (USCIS) released a policy memo stating that effective June 1, 2020 sheep and goat herders can no longer be brought in under the H-2A temporary foreign worker program if they are being hired for year-round jobs. Comments on the new guidance are due December 14.

Farm Must Pay for Failing to Provide Safe Housing and Transportation

            On November 21, an administrative law judge found New Jersey farm, Sun Valley Orchards, guilty of labor violations. As a result, the farm must pay workers around $556,000 in back wages and penalties. Some of the violations included failure to provide sanitary housing, transporting workers in unsafe vehicles with unlicensed drivers, charging workers for meals, and firing workers without cause after they refused to sign false statements. Sun Valley Orchards continues to deny the claims and states that they will appeal.

Appropriations Deadline Pushed to December 20th

Congress recently extended the continuing resolution (CR) for FY 2019, which was set to expire on November 21, to December 20. The CR was sent to President Trump on November 21, and he signed the extension that evening. Many expect arguments over border wall funding to play a significant role in passing a full FY 2020 budget.   

Correction from 11/12 Farmworker Justice Update - In the last update, regarding the H-2A program, we stated, “This year saw only 57 denials of the 1,974 applications submitted;” however, that information was for Quarter 4 of the H-2A data not 2019 as a whole. The percentage of applications approved for FY 2019 was 96%.

 

Update on Farmworker Health and Safety

Children Working in Agriculture Unprepared for Risks

            Research from a variety of sources outlines the dangers children face in agricultural work. They do not receive adequate safety training, and as a result, more children die in agriculture than in any other industry. On June 20, Rep. Roybal-Allard introduced the “Children’s Act for Responsible Employment and Farm Safety of 2019’’ or the ‘‘CARE Act of 2019,” H.R. 3394, with the hope of improving conditions for children and closing some of the discriminatory exemptions from child labor rules available to agricultural employers.