Farmworker Justice Update: 3/27/2020


Farmworkers Face Threat From COVID-19

This past month has brought an explosion of uncertainty to farmworker communities with the emergence of COVID-19 in the United States and around the world.  The COVID-19 crisis highlights the inadequacies and the inextricable links between our healthcare system and our immigration system, leaving many farmworkers in particularly vulnerable positions. Food and agriculture has been labeled an essential sector, meaning that many farmworkers will likely continue to work as this crisis unfolds. In many cases, farmworkers do not  have health insurance or sick leave. Some states have reopened their ACA enrollment period, and the Trump administration is receiving pressure from Congress to open a special enrollment period on, where eligible uninsured individuals could sign up for health insurance coverage amid this public health threat. In addition to these difficulties, farmworkers often are fearful of immigration enforcement at places like hospitals where they may need to get life-saving treatment if facing a severe case of the COVID-19. ICE has pledged not to enforce immigration laws against those seeking medical care, but many undocumented individuals are still fearful of accessing these needed services.

Farmworker Justice is collaborating with farmworker-serving organizations and many other organizations across the United States to help farmworker families confront the very serious challenges caused by COVID-19.  We are gathering information and devising strategies to help farmworkers and their organizations advance solutions for the health and well-being of farmworkers, their children and their communities. Farmworker Justice’s complete statement on the COVID-19 crisis and its impact on farmworkers can be found here. In addition to the challenges described above, H-2A visa workers face additional uncertainty related to COVID-19. Confusion abounded last week as the immediate future of the H-2A foreign guestworker program became unclear when the Trump administration announced that U.S. consulates would no longer process visas, and later, that the southern border would be shut except to vital industries. Eventually, the Administration clarified that agricultural workers would fall under the vital industries category, and that returning agricultural employers are eligible for this exemption. Similarly, the United States Department of Agriculture (USDA) has entered into an MOU with the Department of Labor looking at transferring workers that are already in the country to other employers.

Farmworker Justice and farmworker advocates on the ground will continue to monitor the situation to better understand the impact of COVID-19 on the H-2A visa process. Also, we will urge the Administration to require stronger worker protections from agricultural employers. Farmworkers should be treated as the essential workers they are, and their health and safety should be a prime consideration, not just an afterthought.

  Cuccinelli Not Properly Installed as Head of USCIS

On March 1, a federal judge ruled that Ken Cuccinelli was unlawfully appointed to head the United States Citizenship and Immigration Services (USCIS). The court ruled that the Trump administration violated the Federal Vacancies Reform Act when it appointed Cuccinelli. Under the law, the “first assistant” will take over if the Senate confirmed director steps down. However, Cuccinelli did not work for USCIS prior to taking the helm. Instead, the acting head of DHS at the time, Kevin McAleenan, appointed Cuccinelli. As a result of this ruling, at least two of the asylum policies rolled out by Cuccinelli, who is a hardliner on immigration issues, may be overturned. The Trump Administration is expected to appeal the decision.

Labor Contractor Violated Visa Requirements at North Carolina Based Farm

On March 5, the Department of Labor (DOL) announced that a labor contractor, SBHLP Inc., had been found in violation of H-2A guestworker visa requirements. Among the violations, the labor contractor did not feed the workers three meals per day, made them pay their own visa expenses, and did not pay for the workers’ travel expenses as required by law. The workers were working on five North Carolina based farms. The labor contracting company must pay $224,249 in wages to 194 employees, and a $239,430 civil penalty to DOL. They are also debarred from the H-2A visa program for 3 years.

Wisconsin Supreme Court Rules that Workers be Paid for Time Putting on Gear

On March 19, the Wisconsin Supreme Court ruled that workers cannot negotiate away pay for time spent putting on and taking off protective gear. The lawsuit began in 2010 when around 230 current and former employees sued for back wages for the time spent dealing with protective gear. The lower court ruled in the employees’ favor, and the case went directly to the state’s Supreme Court. The farm defended their actions by stating that the workers had given up the right to compensation for time spent dressing during collective bargaining, and that the de minimis doctrine applies in the case. That doctrine permits employers to disregard otherwise compensable work that takes only a few seconds or minutes beyond scheduled working hours. The court ruled that these arguments were not valid and that employees cannot negotiate away the time spent on protective gear under state law. Additionally, the compensation added up to several hundred dollars per year, which undermined the de minimis argument. The case is not finished. The Wisconsin Supreme Court sent the case back to the district court to review claims that were not addressed in the first ruling, including that the ruling would unjustly enrich the employees.


Update on Farmworker Health and Safety

Maryland Passes Chlorpyrifos Ban

On March 18, the Maryland legislature passed a ban on the use of chlorpyrifos in the state.  Farmworker Justice supports this ban and testified in the Maryland legislature in favor of the bill. The ban goes into effect on January 1, 2021 and sunsets in 2024, and it allows for some limited excepted uses. Advocates say that it is a step in the right direction. Maryland is the fourth state to ban the pesticide, but only the second one to do it through legislative action. (After the bill was introduced, the Maryland Department of Agriculture announced that it would take steps to prevent chlorpyrifos use. However, the proposed steps were much weaker than those suggested in the bill.) The bill currently awaits Governor Larry Hogan’s signature.

ACA Celebrates 10 Year Anniversary

On March 23, the Affordable Care Act (ACA) celebrated its 10th anniversary. The ACA’s passage was a monumental achievement; it increased access to comprehensive health care for low-income individuals, including farmworkers. Among the ACA’s achievements are: Medicaid expansion, the establishment of health insurance marketplaces and subsidies to lower the cost of health insurance, and additional funds to community health centers providing farmworkers with benefits to which they would not otherwise have access. While the law has been attacked from several angles, it continues to provide access to healthcare for many Americans every year.FJ will continue to promote policies that increase access to health insurance and health care for farmworkers and their families. More information about the ACA and farmworkers can be found on our website.


Farmworker Awareness Week

National Farmworker Awareness Week (NFAW) is a week of action for organizations, community members and students to raise awareness about farmworker issues in communities throughout the United States. This year heralds the 21st annual celebration and events highlighting the many contributions of farmworkers as well as the challenges they face. This year, NFAW will run from March 25th-31st. This important effort is coordinated by Student Action with Farmworkers (SAF). Farmworker Justice has participated in the planning committee for a number of years and will be posting a series of blogs and Facebook posts throughout the week. The complete list of themes and more information about the week can be found here.