Farmworker Justice Update: 2/28/2020

Public Charge Rule is Now in Effect

Pursuant to recent Supreme Court decisions, on February 24, the Administration's public charge rule went into effect in all 50 states. Farmworkers applying for LPR status in the U.S. as well as those applying for visas at U.S. consulates abroad will now be subject to the new public charge assessment. It is important that farmworkers and farmworker service providers receive accurate information about public charge, including the new public benefits definition and the other factors in the totality of circumstances test.

FJ recently updated its fact sheet on public charge, available here. FJ also developed a farmworker-focused module, part of a daylong service provider training, available on the California Primary Care Association website. More information about the public charge rule, including community resources, can be found on the Protecting Immigrant Families (PIF) website. Although the Supreme Court overturned the preliminary injunctions against the rule, several lawsuits, including one in which Farmworker Justice is a plaintiff, are ongoing.

Press Conference in Support of FWMA

On February 26, several grower groups and members of the House of Representatives from both sides of the aisle came together to urge the Senate to pass the Farm Workforce Modernization Act (H.R. 5038). The bill passed with a bipartisan majority of 260-165 in the House in December. Farmworker Justice strongly supports the bill, and our factsheet on the bill can be found here.

The National Labor Relations Board Releases Final Joint Employer Rule

On February 26, the National Labor Relations Board (NLRB) published its final Joint Employer rule in the Federal Register. The new rule restricts the circumstances in which businesses that use workers hired through third parties can be held jointly liable for violations of the National Labor Relations Act, which does not apply to farmworkers. This new rule parallels the regulation released by the Department of Labor (DOL) last month under the Fair Labor Standards Act (FLSA), which regulates the minimum wage, child labor and overtime pay (farmworkers are excluded from overtime pay under FLSA). This rule – by placing “employer” status on only one business when two or more businesses share responsibility for employing workers — shields many businesses from liability for workers’ rights violations and from the obligation to bargain in good faith with labor unions. FJ has been part of a coalition of labor advocates that have fought against legislation in Congress promoted by employer associations seeking to restrict the use of the joint employer doctrine. The DOL rule is already being challenged by 17 states and the District of Columbia in the Southern District of New York, and it is likely that this new rule from the NLRB will similarly be challenged.

“PRO Act” Passes the House

On February 6, the House passed the “Protecting the Right to Organize Act of 2019,” or “PRO Act” (H.R. 2474). The bill was introduced by Rep. Bobby Scott (D-VA) and passed by a vote of 224-194. The bill would make it easier for workers to certify unions, change how employers classify workers, prevent workers from being denied collective bargaining rights because of immigration status, and eliminate state right-to-work laws, among other measures. The PRO Act faces severe opposition from many Republicans, including President Trump, and its path forward in the Senate is unclear.

Florida Considers Bill Requiring E-Verify

The Florida state legislature is currently considering whether to impose E-Verify, a government run program to verify the identity of workers, on Florida employers. There are ongoing negotiations over the “Verification of Employment Eligibility Act” (S.B. 1822). Gov. DeSantis supports the proposal while many employers do not. During committee hearings, an exemption for private employers, including agricultural employers, amended the bill. Private employers could still use the federal I-9 program that is already available. This amendment infuriated the bill’s sponsor, and he claims he will urge the governor to veto the bill in its current form.

President Trump Releases Proposed 2021 Budget

On February 10, President Trump unveiled his proposed FY 2021 budget. The proposed budget includes large cuts to safety net programs, including Medicaid and housing subsidies, federal broadcasting, and student loan initiatives, while at the same time increasing spending in areas such as border enforcement and the military. Over the course of his presidency, few of President Trump’s budget proposals have made it into law.

Update on Farmworker Health and Safety

State-Level Efforts to Ban Chlorpyrifos

On February 26, Corteva, one of the main producers of chlorpyrifos, announced that they would stop selling the chemical by the end of 2020. Sales of the highly toxic pesticide have been dropping as places like the European Union and California, whose ban on the chemical went into effect on February 6, have banned the pesticide. Sen. Udall (D-NM), sponsor of the “The Protect Children, Farmers and Farmworkers from Nerve Agent Pesticides Act of 2019” (S. 921) said in response to Corteva’s announcement, “The science on chlorpyrifos is clear and unambiguous, and it has no place on our food or in our fields.” Advocates continue to work on state, federal, and agency action to ban chlorpyrifos use.

On February 19, the Oregon house passed H.B. 4109, a ban on chlorpyrifos, in a vote of 32-24. Under HB 4109, aerial pesticide applications of chlorpyrifos would be prohibited immediately, as would spraying within 300 feet of a school campus, before the a full ban takes effect in January 2022. Farmers would also immediately have to prevent workers from entering areas treated with the chemical for eight days. However, the bill allows exemptions on certain crops. Following the House floor vote, the bill has passed through the Senate Committee on Environment and Natural Resources. It now awaits a full Senate floor vote.

Last week, the Maryland Department of Agriculture announced that it would begin the regulatory process of phasing out the use of chlorpyrifos. The timing of this announcement is hardly coincidental, however, as the state legislature is currently considering a complete ban on chlorpyrifos. Earlier this month, a broad coalition of advocates testified in favor of the proposed ban, including Farmworker Justice and the Migrant Clinicians Network. The Smart on Pesticides coalition stated in response to the announcement, “The Hogan Administration’s sudden change of heart in favor of considering regulating the toxic pesticide chlorpyrifos is surprising, after three years of active opposition to legislation that would ban it. The proposal is not acceptable.” The sponsors of the legislation intend to continue work on the bills despite the announcement by the Maryland Department of Agriculture.

UC Davis Study on Farmworker and Employer Responses to Wildfire Smoke

California has increasing fire events that create an unsafe work environment for farmworkers. According to a recent study by UC Davis, employers and farmworkers know that they need to take measures to protect against smoke inhalation. However, few employers have a plan in place for when smoke events occur. Farmworkers are often unwilling to stop work because of economic concerns regarding lost wages. Last year, California OSHA enacted emergency regulations to protect farmworkers if the smoke index reaches a certain point. Cal OSHA is in the process of enacting permanent regulations and guidelines for wildfire protections for workers. Sen. Merkley (D-OR) introduced “The Farmworker Smoke Protection Act of 2019” in Congress last year (S.B. 1815). You can find our factsheet on the bill here.