Farmworkers in the U.S.

Farmworker Justice Update - 08/22/19

Trump Administration Proposes Major Changes to H-2A Agricultural Guestworker Program:  Comments Due September 24

           On July 26, the Department of Labor (DOL) published proposed changes to the H-2A temporary foreign agricultural worker program regulations in the Federal Register. Interested parties may submit comments to the proposal through September 24. The DOL proposes many changes to the H-2A program, including a new calculation for wage rates, shifting some transportation costs to workers, expanding the program to pine straw and reforestation workers, weakening recruitment requirements for U.S. workers and allowing for employer applications with staggered entry dates for guestworkers, among others. The Farmworker Justice summary of the major proposed changes is available on our website. There are many more changes which need careful review.  FJ has drafted model comments that farmworker, immigration, labor, social justice and other organizations can use in drafting their own comments. FJ is also currently working with partner organizations to draft a lengthier set of in-depth comments. For more information, please contact FJ Staff Attorney Iris Figueroa at [email protected].

DOJ and DOL Formalize New Partnership to Protect U.S. Workers in H-2A Visa Program

                On July 31, the Department of Justice (DOJ) and the Department of Labor (DOL) entered into a Memorandum of Understanding (MOU) to better protect U.S. workers from discrimination under the H-2A program. The MOU increases communication and training opportunities between the two agencies to decrease discrimination against U.S. workers. This MOU is part of the Civil Rights Division’s “Protecting U.S. Workers Initiative,” which was launched in 2017 and is aimed at targeting, investigating, and taking enforcement measures against companies that discriminate against U.S. workers in favor of foreign visa workers.

New Jersey Enacts a New Wage Theft Law to Protect Workers

                 On August 6, acting New Jersey Governor Sheila Oliver signed S. 1790 into law. This wage left law provides greater protection for workers, in order to ensure that they receive the pay they are due. The bill enhances enforcement of New Jersey’s wage and hour laws by holding employers accountable for unpaid wages, benefits, or overtime as required by law through increased damages and fines. It makes victims of wage theft eligible to receive both the wages owed and liquidated damages of 200 percent of wages owed.

 680 Workers Arrested in Mississippi Worksite Raids on Poultry Plants

                  On August 7, ICE raided several companies in Mississippi, arresting around 680 workers. Four poultry plants were raided in what is considered one of the largest raids ever in a single state, and the largest since President Trump took office. ICE officials arrested individuals and loaded them into buses before taking them away for processing at a local National Guard base. With no warning on the raid, children of the detained individuals were left at schools and homes with no guardians or caretakers. Since then, some individuals have been released, while around 350 are still incarcerated and awaiting a hearing. However, many of those released are now struggling to make ends meet after losing their jobs.  The businesses which employed the workers have not been charged with violating immigration law as of this update, but several dozen of the workers have been indicted for immigration-related offenses.   

Washington Farmworkers Participate in March for Dignity

                Approximately two hundred marchers gathered on August 4 outside a prison in Ferndale, WA that is being used as an immigration detention center. They then proceeded to march 14 miles, ending at Crystal View Raspberry Farm, where an H-2A worker died after being forced back to work despite feeling ill. The march sought to highlight abuses in the agricultural labor system. As stated by Rosalinda Guillen, Director of Community to Community: “The Trump administration is targeting our local community, deporting people who have been living here for years. Then growers complain there aren’t enough workers and begin using the H-2A program to bring in guest workers. It is a vicious revolving door of exploitation.”

A Farmworker Provides a Firsthand Account of His Experience

                Omar Garcia Garcia was interviewed by The Nation as part of an ongoing oral history project revealing the stories of immigrants. Omar is a guestworker from Michoacán, Mexico, and has worked in the U.S. for five growing seasons. He continues to come back, leaving his family for months at a time, because he can use the earnings to support them and give them a better life. He grew up in a rural community, and he loves to work in the fields. However, he describes his first season as especially difficult because of the adjustment to the new surroundings and culture. However, he could not return home because of the debt he accrued in order to get the job opportunity. He also describes the difficult working conditions and the uncertainty of whether there will be a job next year from an employer. 

Car Drivers Harassing Head Start Buses with Migrant Workers’ Children

                Idaho officials report that car drivers are following and harassing school buses with migrant worker children headed to early education programs. The local organization which operates the programs plans to conceal the bus signage containing the word “migrant”, as well as adding cameras to enhance security. Similar incidents have been reported in other states, including Indiana.

Update on Farmworker Health and Safety

Department of Homeland Security Finalizes Public Charge Rule

                 On August 14, the Department of Homeland Security (DHS) finalized its rule on public charge regarding applications for immigration status. The final rule radically changes the definition of public charge to make it far more difficult to gain approval of immigration applications. It expands the list of public benefits defined under public charge to include SNAP (food stamps), Medicaid (with exceptions), and housing assistance. It also defines and adds positive and negative values to the factors under the totality of circumstances test, which is used to determine an applicant's likelihood of becoming a public charge. Under the new test, factors such as low-wages and lack employer-provided health insurance will be negative factors.  Farmworkers in the U.S. and H-2A workers applying to enter the U.S. will be affected by this rule.

                 The rule is set to go into effect on October 15. FJ is a plaintiff in a lawsuit filed by a coalition of organizations shortly after the rule’s publication that seeks to invalidate it. A fact sheet on the final public charge rule and its potential impact on farmworkers can be found on FJ’s website. FJ also issued a statement in response to the rule that can be found here. FJ is working with national, state, and local partners, including the Protecting Immigrant Families campaign, to share information about the public charge rule. Contact Alexis Guild, Senior Health Policy Analyst, at [email protected], with any questions or for more information. 

Farmworker Justice and Allies Sue EPA Over Chlorpyrifos Decision 

                On August 7, Earthjustice, Farmworker Justice, and other environmental and farmworker organizations, filed suit against the EPA for its failure to ban chlorpyrifos. The chemical has been linked to brain damage in children and harm to farmworkers. The agency’s decision to continue to prioritize corporate profit over children’s health and safety is unconscionable in light of the scientific evidence. Another lawsuit was filed in the 9th Circuit on the same day with six states - California, Washington, Massachusetts, Maryland, New York, and Vermont - acting as plaintiffs. Hawaii and Washington, D.C. are also expected to join the state lawsuit.

EPA Will Not Require Cancer Warnings on Products Containing Glyphosate

                On August 8, the U.S. EPA announced that it would not require producers to put a cancer warning on products containing glyphosate. The EPA claims that its research and information show that the substance does not cause cancer in humans, and therefore, the label is unnecessary. The EPA reviewed glyphosate earlier this year after California attempted to put the warning on products sold in the state. California’s Safe Drinking Water and Toxic Enforcement Act requires companies to warn consumers of carcinogens as determined by several agencies and organizations including the International Agency for Research on Cancer (IARC). IARC found that glyphosate likely causes cancer, which triggered California’s requirement. The state has not enforced the labeling requirement yet because a ruling in an ongoing lawsuit placed an injunction on glyphosate labeling for now. Recently, a jury ordered Monsanto to pay $289 million to a school groundskeeper who got terminal cancer after using Roundup, which contains glyphosate.          

 

Trump Department of Labor Proposes Harmful Changes to H-2A Agricultural Guestworker Program

Today (July 26) the Trump Department of Labor announced plans to make sweeping revisions to the H-2A agricultural guestworker program to the detriment of farmworkers. The proposed H-2A changes would weaken key protections for farmworkers, reducing the ability of the current farm labor force to obtain employment with H-2A employers and exposing H-2A workers to greater vulnerability and costs. 

The Trump Administration seeks to guarantee agribusiness unlimited access to a captive workforce—guestworkers who are denied the rights and freedoms of immigrants and citizens. The proposal epitomizes the Trump Administration’s hostility to immigrants.  At the same time that the Administration takes steps to transform the farm labor force of roughly 2.4 million people into a workforce of 21st-century indentured servants, it is demonizing hard-working immigrants and ratcheting up cruel and counterproductive arrests and deportations, targeting many of our nation’s current experienced and valued farmworkers. Instead of further expanding and weakening worker protections in the H-2A  guestworker program, the Administration should strengthen labor protections, improve enforcement of farmworkers’ limited labor rights, and support legislation such as the Agricultural Worker Program Act, which would grant undocumented farmworkers and their family members the opportunity for immigration status and a path to citizenship.

You can find a summary of the proposed changes in the "Resources - Guestworker Programs - H-2A" section of our website. We will be sharing model comments that we are working to develop with the UFW, UFWF and other partners.  We encourage you to submit comments to ensure that the voices of farmworkers and allies are heard on the harm these H-2A proposed rules would cause.  The deadline for comments is September 24, 2019.  

Farmworker Justice Update - 07/11/19

Year-Round H-2A Amendment Included in House DHS Appropriations Bill

On June 11, the House Appropriations Committee passed an H-2A year-round rider on the Department of Homeland Security (DHS) appropriations bill for FY 2020, via voice vote. Reps. Newhouse (R-WA) and Cuellar (D-TX) introduced the amendment, which allows H-2A workers to be admitted without regard to whether they provide labor or services that are of a temporary or seasonal nature. Reps. Roybal-Allard (D-CA), DeLauro (D-CT), Torres (D-CA), and Kaptur (D-OH) spoke in opposition to the amendment. FJ strongly opposes both the substance of this amendment and the method by which it was adopted. 

Given the contentiousness of the DHS appropriations bill, as well as the current Congressional schedule, the DHS appropriations bill is unlikely to be voted on by the full House before September. The Senate must also pass its own DHS appropriations bill. Therefore, it is unclear whether there will be a final DHS appropriations bill passed by both chambers by September 30, which is when FY 2019 funding is set to expire (with FY 2020 beginning on October 1, 2019). FJ is currently working alongside our allies in both the labor and immigration movements to ensure this harmful H-2A rider is not included in the final FY 2020 DHS appropriations bill. 

Sen. Paul Reintroduces H-2A Expansion Bill 

Last month, Sen. Rand Paul (R-KY) reintroduced the “Paperwork Reduction for Farmers and H-2A Modernization Act,” S. 1887. A companion bill, H.R. 3319, was introduced in the House by Rep. Kelly (R-MS) the same day. The bill currently has four co-sponsors in the House and no co-sponsors in the Senate. The bill is an updated version of a similarly named H-2A expansion bill that was introduced by Sen. Paul in the previous Congress. While the legislation is framed as a bill that would “streamline” the H-2A application process, it includes provisions that would fundamentally change the program, such as expanding H-2A to a variety of year-round industries, including dairy, equine, and seafood processing. The bill also includes a “safe harbor” provision insulating any employers who use third-party preparers from penalties for errors or omissions in their application. FJ opposes this bill. 

Farmworker Justice Freedom of Information Act Lawsuit

On June 28, Farmworker Justice filed a federal lawsuit against the U.S. Department of Agriculture for failure to comply with its obligation to disclose documents under the Freedom of Information Act (FOIA).  FJ is co-counseling the case, Farmworker Justice v. U.S. Department of Agriculture, with Public Citizen. FJ has been seeking documents regarding the Trump Administration’s interagency task force on the H-2A agricultural guestworker program.  The task force met with agribusiness representatives and apparently recommended changes to the H-2A program regulations. 

Settlement Involving Florida Strawberry Farm that Discriminated against U.S. Workers

Last month, the Department of Justice (DOJ) announced a settlement agreement against H-2A employer Sam Williamson Farms Inc. (SFW), a strawberry farm in Dover, Florida. The DOJ’s investigation found that SFW had discriminated against U.S. workers for its strawberry harvesting, informing its existing U.S. workers that it would hire H-2A workers instead for its following season. SFW eventually hired more than 300 H-2A workers and no U.S. workers. Under the settlement, SFW must pay $60,000 in civil penalties and up to $85,000 in back pay to eligible U.S. workers. The investigation was carried out under the DOJ’s “Protecting U.S. Workers Initiative.” 

Article on Labor Trafficking in Agriculture 

A recent Texas Observer article details the abuse and horrific working and living conditions endured by agricultural workers who are victims of labor trafficking, including many who are in the country on H-2A visas. The article notes that though sex trafficking is a more well-known problem, labor trafficking is also widespread, especially in certain industries such as agriculture. The article highlights the specific vulnerability of H-2A workers, who are bound to an employer who controls their visa, housing and worksites. As stated by Texas RioGrande Legal Aid (TRLA) attorney Stacie Jonas, guestworkers are nervous about doing anything that might make them deportable or make it difficult for them to get another visa again in the future. 

Rep. Roybal-Allard Reintroduces Federal Bill to Protect Children Working in Agriculture 

Last month, Rep. Roybal-Allard (D-CA) introduced the “Children’s Act for Responsible Employment and Farm Safety of 2019” (CARE Act), H.R. 3394, which establishes protections for children working in agriculture. The bill has been introduced in past Congresses. The CARE Act would amend the Fair Labor Standards Act (FLSA) in order to strengthen the provisions relating to child labor. While retaining exemptions for family farms, it would prohibit the employment of children under age fourteen (14). Fourteen (14) and fifteen (15) year-olds could be employed only for certain agriculture jobs, during limited shifts and outside of school hours. The bill also states that workers must be at least eighteen (18) years of age to perform hazardous tasks. Additionally, the bill requires data collection on work-related injuries, illness, and deaths of children under age 18 in agriculture, as well as an annual report by the Secretary of Labor.

New York Passes Landmark Farmworker Legislation 

Last month, the New York state legislature passed legislation that will significantly improve farmworkers’ labor rights. A version of the bill, entitled the “Farmworker Fair Labor Practices Act” had been proposed in the state legislature without achieving passage for over two decades. The final bill, which has been signed by Governor Cuomo, represents a compromise between labor groups and farm employers. The bill provides farmworkers with overtime pay, collective bargaining rights, unemployment insurance and expanded workers’ compensation. The bill, S.6578, states that farmworkers are entitled to form a union and engage in collective bargaining free from retaliation. In addition, a union can be certified as the bargaining representative based on “card check,” i.e., a majority of workers signed dues deduction authorization forms.  Allowing card check as an alternative to holding a formal representation election option can be helpful to reducing companies’ anti-union campaigns. The legislation also enables a union to obtain a decision from an arbitrator on the terms of a collective bargaining agreement if the company and union reach an impasse. This opportunity will reduce companies’ ability to refuse to bargain in good faith for the purpose of avoiding a contract. However, the final bill has language prohibiting strikes, based on farmers’ assertions that their impact could be severe during peak seasons. As noted in previous FJ updates, the state appellate court in New York recently 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.

The bill also establishes overtime pay for farmworkers over 60 hours as well as the option of either a day of rest each week or receiving overtime pay for the seventh day of work. The original bill called for overtime pay over 40 hours. The 60-hour threshold is still a significant improvement, however, as New York farmworkers previously had no right to overtime pay. Only a handful of states in the country offer overtime pay to farmworkers, despite the fact that farmworkers often work more than 40 hour weeks. This is due to a discriminatory and historical exclusion of farmworkers from federal labor legislation. You can read more about this exclusion and a proposed federal bill to remedy it on the FJ website. FJ’s President Bruce Goldstein testified in support of farmworkers’ rights at a NY State Senate hearing at the request of the bill’s lead sponsor, Senator Jessica Ramos of Queens, NY.  Congratulations to Sen. Ramos, and the many coalition members who fought this struggle, including the Rural and Migrant Ministry, Worker Justice Center of New York, NY ACLU, the Robert F. Kennedy Center for Justice and Human Rights, the NY State AFL-CIO, the Hispanic Federation, and many others.

Update on Farmworker Health and Safety

House Bill Calls for Federal Protections against Heat Stress 

Yesterday (July 10), Reps. Chu (D-CA) and Grijalva (D-AZ) introduced the “Asuncion Valdivia Heat Illness and Fatality Prevention Act,” H.R. 3668. The bill is named after a farmworker who tragically died from heat stress. It calls on the Occupational Safety and Health Administration (OSHA) to issue a federal standard on the prevention of excessive heat in the workplace, including the provision of adequate shade, water and rest breaks, as well as information and training on heat stress prevention and symptoms. Unfortunately, too many employers do not offer reasonable protections against heat stress and many farmworkers are reluctant to speak up about unsafe conditions. Climate change is further exacerbating the problem, as temperatures continue to rise nationwide. FJ supports this bill.

FJ President Bruce Goldstein spoke during a press conference on the bill’s introduction about the importance of these common sense measures for protecting farmworkers. Earlier today, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “From the Fields to the Factories: Preventing Workplace Injury and Death from Excessive Heat,” which can be viewed here. Arturo Rodriguez, former President of the UFW, was one of the witnesses at the hearing and discussed the impact of this occupational risk on farmworkers. As mentioned in previous FJ updates, FJ joined Public Citizen and the UFW, along with a coalition of over 200 individuals and groups, in filing a petition to OSHA last year asking for a federal standard to protect workers from heat stress. OSHA has not yet responded to the petition. There is currently no federal heat standard to provide workers with protections from dangerous heat conditions. 

Senate Bill Seeks to Protect Farmworkers from Smoke Exposure

Last month, Senator Merkley (D-OR), introduced “The Farmworker Smoke Protection Act of 2019,” S. 1815. During wildfires, farmworkers often have to work quickly in smoky conditions to harvest crops and protect them from smoke damage, and many do so without proper respiratory protection. The bill would help ensure that farmworkers are protected from hazardous wildfire smoke by requiring employers to provide N95 or other NIOSH-certified respiratory protection to farmworkers who may be exposed. The use of the equipment would be mandatory when the air quality reaches a dangerous level. The bill also requires training and education materials on how to properly use the equipment to be made available to farmworkers, in a language that they understand. Additionally, the bill directs OSHA to develop and publish an official standard to protect employees affected by exposure to wildfire smoke. FJ supports this bill.

Two Mass Pesticide Exposure Incidents Within Two Weeks in Fresno County  

On June 18, approximately 60 workers were affected by a pesticide exposure incident in Dinuba, California. A pesticide that was being sprayed in a nearby orchard drifted into the vineyard where the workers were. Three of the workers had to be hospitalized and the rest were decontaminated on site by emergency responders. Less than two weeks later, on June 27, approximately 75 workers were exposed to pesticides, also in Fresno County, and also leading to the hospitalization of three people. This second incident also seems to have involved drift. Investigations are still underway for both incidents. 

Article on Valley Fever in Farmworker Communities 

A recent Civil Eats article explores the prevalence of valley fever in California’s farmworker communities. Valley fever is a chronic illness caused by a soil fungus called cocci when it becomes airborne, which causes flu-like symptoms and can be fatal. Cases of the disease increased by 10% in California between 2017 and 2018. New cases are especially concentrated in the San Joaquin valley, where many of the state’s farmworkers live. The causes and impact of the disease are still being studied, but working outside and living in areas with high particle pollution (which is often exacerbated by agricultural practices) seem to increase the risk. African-Americans and Latinos seem to be more likely to have severe symptoms. Additionally, climate change is believed to be expanding the territory where the cocci fungus can be found, which will likely lead to an increase in the number of cases not just in California but in other states as well. 

Fifth Circuit Court of Appeals Hears Arguments in Texas v. US

On July 9, the Fifth Circuit Court of Appeals heard oral arguments in Texas v. US. The panel of judges will decide whether to uphold a lower district court ruling that deemed the ACA unconstitutional after Congress eliminated the tax penalty in 2017. The ACA is being defended in court by 20 states and the District of Columbia, led by California Attorney General Becerra, along with the House of Representatives. If the ACA is struck down, an estimated 20 million people could lose health coverage and many of the health and consumer protections, including pre-existing coverage protections, would no longer be in effect. FJ will share updates on this case as the appeals process continues.

California Expands Medi-Cal Coverage to Undocumented Young Adults

On June 27, Governor Newsom signed California’s 2019-2020 budget. The budget expands Medi-Cal coverage (California’s Medicaid program) to undocumented young adults up to age 26. In 2015, Medi-Cal expanded coverage to undocumented children (0-19 years old). In addition to expanding Medi-Cal coverage, the budget also expands health insurance premium support for individuals and families enrolled in Covered California (California’s health insurance marketplace) and reinstates an individual mandate penalty. More information about the California 2019-2020 budget can be found here.

FJ’s Illustrated Diabetes Brochure for Farmworkers

FJ is excited to share its newest publication for farmworkers, “Life of the Party: Making Healthy Choices with Diabetes” available in English, Spanish, and Haitian Creole on our website. It is a comic style brochure that provides information about how to shop for food and make healthy food choices with diabetes. It encourages community members with diabetes to not hide away from being part of community celebrations. FJ is working with our partners across the country to promote diabetes education and testing among farmworker communities. Contact Alexis Guild at [email protected] with any questions, feedback, or for more information.

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.

Farmworker Justice Update - 05/17/19

Farmworker Justice Update: 05/17/19

DOL Releases H-2A Second Quarter Data Showing Continued Growth

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently published data on the H-2A temporary agricultural worker visa program for the second quarter of FY 2019. The data shows that approximately 123,000 H-2A positions have been certified so far this fiscal year, a 14% increase over the same period in FY 2018.  In FY 2018, DOL approved a total of approximately 242,000 H-2A jobs.

NCAE Continues Attempts to Decrease Farmworker Wages

On April 30, the National Council of Agricultural Employers (NCAE) sent a letter petitioning the Department of Labor (DOL) to change its methodology for calculating the Adverse Effect Wage Rate (AEWR) for the H-2A program. As noted in previous updates, the NCAE filed a lawsuit earlier this year seeking to reverse the DOL’s implementation of the 2019 AEWRs. The lawsuit, Peri & Sons Farms, Inc. v. Acosta, was dismissed by a U.S. District Court judge in March based on the statute of limitations. On April 18, two weeks before sending the letter to the DOL, the NCAE filed an appeal in the Peri & Sons case. The appellant’s briefs are due next week. FJ is co-counsel for the United Farm Workers (UFW), which intervened in the case.

House Committee Hearings on the Agricultural Economy

The House Committee on Agriculture recently held two hearings on the state of the agricultural economy. One was focused generally on the farm economy, while the other focused specifically on the dairy industry. The hearing witnesses discussed a variety of factors including trade uncertainty and product pricing. Another factor that was highlighted in both hearings was the importance of immigrant labor to the agricultural economy. A few of the representatives present stressed the need to provide an immigration solution for the many undocumented workers who are currently doing agricultural work, such as in the Agricultural Worker Program Act of 2019, which FJ supports. However, some of the witnesses and representatives instead took the opportunity to call for weakening the existing protections in the H-2A temporary agricultural worker visa program, including an expansion to year-round industries such as dairy. As detailed in our fact sheet on the most recent H-2A year-round proposal, FJ opposes expanding the H-2A program to year-round jobs and supports opportunities for immigration status for any farmworkers needed in the future. 

Recent DOL Enforcement Actions against H-2A Employers

The Department of Labor (DOL) recently issued a decision against James Brady Sr. of Lebanon, Kentucky for violations of the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the H-2A visa program.  Brady, a tobacco farmer, paid his U.S. employees less than H-2A workers doing the same work. Among other violations, Brady also failed to provide the H-2A workers with free housing, transportation reimbursement, and three-quarters of the hours guaranteed in their work contracts. Brady was ordered to pay almost $92,000 in back wages as well as a civil money penalty of $115,000.

DOL also recently announced consent findings in a case against Earl Roy Farm of Louisiana LLC, a sweet potato farm based in Hessmer, Lousiana, for violations of the H-2A program’s requirements. Earl Roy Farm similarly paid U.S. workers lower wages than H-2A workers, failed to reimburse H-2A workers for their transportation and failed to provide three-fourths of the guaranteed work hours. Additionally, Earl Roy Farm unlawfully laid off U.S. workers. The company will pay approximately $70,000 in back wages in addition to more than $30,000 in civil money penalties.

Guardian Article on Abuses and Fraud in H-2A Recruitment

A recent article in The Guardian details abuse and fraud in the recruitment of Mexican workers who come to the U.S. on H-2A visas. Even though recruitment fees are illegal under the program, many recruiters charge workers, who do not disclose the fees for fear of losing their visas and/or being blacklisted. Workers who arrive at their jobs already indebted are then vulnerable to labor abuses and trafficking. The article highlights the power imbalance between H-2A workers and their employers, as well as the lack of clarity about who the actual employer is given the prevalence of recruiters and labor contractors.

Civil Eats Article on Farmworkers’ Labor Rights

A recent Civil Eats article details farmworkers’ historic exclusion from labor protections and extremely low unionization rate. It highlights various farmworker unions: the United Farm Workers (UFW), Pineros y Campesinos del Noroeste (PCUN) and the Farm Labor Organizing Committee (FLOC), as well as the work of Familias Unidas por la Justicia and the Rural Migrant Ministry. The article also references the New York Farmworker Fair Labor Practices Act, which would remedy farmworkers’ exclusion from collective bargaining rights, among various other provisions advancing farmworkers’ labor rights. FJ’s President Bruce Goldstein recently testified before the NY State Senate in favor of the bill.  

New Immigration Proposal Introduced by White House

Yesterday (May 16), President Trump announced a new immigration plan focused on increasing the militarization of the border, weakening asylum protections and overhauling the country’s legal immigration system in favor of a “merit” points system. The White House proposal does not specifically address agricultural workers despite the demand by agricultural employers and farmworkers for immigration reform. The proposal has been labeled “dead on arrival” from all sides of the immigration debate. Among many issues, the plan does not offer immigration status or other relief to Dreamers or TPS holders and similarly lacks a solution for the approximately 11 million undocumented individuals currently in the country. If ever enacted, the proposal would be extremely harmful for many reasons, including by preventing the unification of families. The proposal’s emphasis on granting immigration visas to highly educated individuals ignores the reality of who fills essential jobs in our economy.

Update on Farmworker Health and Safety

State Actions on Chlorpyrifos

In the absence of progress at the federal level, several states are taking steps to end the use of the pesticide chlorpyrifos in agriculture.  Last week, the California EPA announced that it was beginning the regulatory process to ban its use in that state, and a bill to take swifter action is pending in the California Senate. On April 30, the New York state legislature passed a bill to ban the pesticide, and the Oregon and Connecticut legislatures are considering similar bills. Hawaii was the first state to pass legislation banning the pesticide last year. As stated by FJ’s Director of Occupational and Environmental Health, Virginia Ruiz: “There’s momentum now, and people and policymakers are becoming better educated about chlorpyrifos.” As noted in previous FJ updates, chlorpyrifos is a highly toxic pesticide that is linked to neurodevelopmental damage in infants and children. EPA banned its residential use in 2000. In 2016, EPA scientists recommended cancelling remaining uses of the pesticide, but in March 2017, the Trump Administration allowed its continued use indefinitely. Last month, the Ninth Circuit Court of Appeals ordered the EPA to issue a final decision regarding chlorpyrifos by July 18, in response to litigation and administrative objections by farmworker and environmental groups, including FJ.   

Midwest Examples Highlight Lack of Pesticide Incident Reporting

A recent Harvest Public Media investigation highlights the lack of adequate state and national records on pesticide exposure incidents, based on information from the departments of agriculture in various Midwestern states including Colorado, Illinois, Iowa, Kansas, Missouri and Nebraska. Among the problems identified is that some departments do not track incidents at all while others do not distinguish between human and other types of exposures. There is also a lack of coordination between state agricultural, health and environmental agencies. At the federal level, as detailed in previous FJ updates, the Environmental Protection Agency (EPA) recently updated the Worker Protection Standard (WPS). However, even with some of the crucial improvements in this regulation, the EPA still has little ability to monitor their implementation and determine how frequently workers are actually exposed. The issue of pesticide drift is of particular concern, as this is one of the most common ways in which individuals can be exposed. The new version of the WPS includes a safety measure, called the “Application Exclusion Zone,” or AEZ, that seeks to address and prevent this risk. Unfortunately, however, the EPA recently announced that it plans to issue a proposed rule to reconsider the AEZ, potentially weakening its scope and impact. We do not yet know the specific contents of the proposed rule. If and when it is published, FJ will work to submit comments that stress the importance of preventing exposures for both workers and bystanders.  

CMS Finalizes 2020 Benefit and Payment Parameter Rule

On April 18, the Centers for Medicare and Medicaid Services (CMS) issued its final 2020 Benefit and Payment Parameter Rule. This rule, issued annually, sets standards for the Affordable Care Act health exchanges including plan benefits, tax credits and cost-sharing as well as consumer outreach/in-person assistance. Among its provisions, the final rule eliminated the requirement that navigators provide post-enrollment assistance and reduced the training requirements for navigators. Navigators will no longer be trained to provide post-enrollment assistance and will only receive general trainings on topics such as the needs of underserved and vulnerable populations. Among the many implications of this final rule, there will be fewer navigators who are properly trained to assist farmworkers and other hard-to-reach/vulnerable populations in health insurance enrollment. There are also concerns that the final rule will reduce affordability for low-income consumers due to changes related to the premium adjustment percentage. More information about the final rule can be found here.

House Votes on Bill that Would Restore Funding for ACA Outreach and Enrollment

Yesterday (May 16), the House of Representatives passed a bill that would restore funding for ACA outreach and enrollment. H.R. 987, the Marketing and Outreach Restoration to Empower (MORE) Health Education Act, will restore funding for outreach and education activities in Federally-Facilitated Exchanges (FFEs). It will also limit funding for outreach activities to ACA-compliant plans, barring outreach funds from being used to promote short-term health plans. Since 2017, there have been significant cuts to funding for ACA outreach and enrollment. The Congressional Budget Office (CBO) estimates that the MORE Act could lead to an additional 500,000 individuals enrolling in coverage. The bill is part of the House’s broader health care legislation to improve financial assistance and strengthen protections under the ACA.

Update on Texas v. U.S. Lawsuit to Stop Implementation of the ACA

The Fifth Circuit Court of Appeals will hold a hearing on Texas v. U.S. in July. A date has not yet been set but oral arguments are expected to take place the week of July 8. California’s Attorney General, Xavier Becerra, is leading a coalition of 21 attorneys general in defense of the constitutionality of the ACA. The Fifth Circuit granted Wisconsin’s request to withdraw from litigation, leaving 18 states, led by Texas, and two individuals as plaintiffs. A press release from Attorney General Becerra's office can be found here.

Please join us at the annual Farmworker Justice Awards Reception in Washington, D.C. on Thursday, June 13, 2019!  

Action Alert – Sign the Petition to the EPA and Congress to Stop Pesticide Poisoning of Farmworkers & Their Children

Action Alert – Sign the Petition to the EPA and Congress to Stop Pesticide Poisoning of Farmworkers & Their Children

It’s wrong that farmworkers and their children continue to be exposed to the highly toxic pesticide chlorpyrifos. 

You can help right this wrong by signing the petition to ban agricultural use of chlorpyrifos.  We will send it to the Administrator of the Environmental Protection Agency (EPA), Andrew Wheeler, and key Members of Congress.  Our goal is 5,000 signers.

Farmworker Justice Update: 04/24/19

Farmworker Justice Update: 04/24/19

2017 Census of Agriculture Results

The U.S. Department of Agriculture recently released the results of its 2017 Census of Agriculture. The Census is conducted every five years and is meant to capture agricultural trends. With regard to farmer demographics, the average age of farm producers has continued to rise. Over 95% of farm producers are white whereas only about 3% are Hispanic, an interesting piece of data when you contrast it with the National Agricultural Workers Survey (NAWS)’ finding that more than 80% of farmworkers are Hispanic.

Another trend identified in the survey was a decline in the number of mid-size farms, while the number of both very small farms (sales of $2,500 or less) and very large farms (sales of $5 million or more) increased.  There are 2 million farms in the U.S., comprising 900 million acres of land. More than two thirds of all agricultural production was sold by fewer than 4% of U.S. farms. The top ten agricultural producing states were California, Iowa, Texas, Nebraska, Kansas, Minnesota, Illinois, North Carolina, Wisconsin and Indiana. The value of agricultural products sold from farms nationwide was $389 billion.  The 2017 market value of all agricultural products in some of the states known for labor-intensive products such as fruits, vegetables, horticulture and dairies include: California $45.2 billion; North Carolina $12.9 billion; Wisconsin $11.4 billion; Washington $9.6 billion; Florida $7.4 billion and Arizona $3.85 billion.

New York Farmworkers Fair Labor Practices Act

Celebrity chef Jose Andres and Broadway star Lin-Manuel Miranda, along with Hispanic Federation President Jose Calderon, recently penned an op-ed in support of New York’s proposed Farmworkers Fair Labor Practices Act. The bill has passed the New York State Assembly in past years but has not passed the Senate. As noted in the op-ed, the 2019 session must be different. The bill would remedy farmworkers’ exclusion from overtime pay, unemployment insurance, workers’ compensation and the right to bargain collectively. FJ President Bruce Goldstein will be testifying in favor of the bill in one of several legislative hearings that will be held across New York in the coming weeks. You can find more information on the bill, and how to support it, here.

Washington State House Passes State H-2A Office Bill

Earlier this month, the Washington State House of Representatives passed SB 5438, a bill that would establish an office within the state employment security department specifically tasked with monitoring the H-2A program. The bill had already passed in the state Senate. Unfortunately, the bill does not contain some of the provisions hoped for by farmworker advocates, including a fee charged to employers who use the program. As stated by Rosalinda Guillen, Executive Director of Community to Community Development, which has been advocating for the legislation: “this is not the original bill we wanted, but it is still a viable process that will help us fight for justice for farmworkers.”  Farmworker Justice has been working with groups in the state to address the failure of the U.S. Department of Labor and the state agency to carry out their obligations under the H-2A program, including issuing determinations of local prevailing wage rates. The legislation arose in part because the state labor agency sought additional resources to fulfill its obligations. You can find more information on the bill here, including the bill text.  The bill is awaiting signature from the Governor.

Nielsen Departure and DHS Shake-up

On April 5, President Trump announced the departure of Department of Homeland Security (DHS) Secretary Kirstjen Nielsen. As DHS Secretary, Nielsen oversaw the Administration’s family separation policy and other egregious actions.  Nielsen’s departure occurred shortly after Pres. Trump withdrew the nomination of Ron Vitiello to lead the Immigration and Customs Enforcement (ICE) agency because he wanted to go in “a tougher direction,” leading to concerns that there may be a staff overhaul underway led by immigration hard-liners such as Stephen Miller. For the time being, Kevin McAleenan is serving as DHS secretary. McAleenan was previously U.S. Customs and Border Protection (CBP) commissioner.   

DOL Publishes Proposed Rule on Joint Employment

 On April 9, the Department of Labor (DOL) published its proposed rule on joint employer status under the Fair Labor Standards Act (FLSA). DOL is proposing to narrow the test for determining when two businesses should be considered to jointly employ a worker.  The joint employment concept is especially important for farmworkers, many of whom are hired to work on farms through labor contractors. When wage theft occurs, in the past many growers denied that they were the “employer” for purposes of the minimum wage and other obligations.  FJ and other advocates have advocated and litigated to demonstrate that the FLSA’s broad definition of employment relationships encompasses joint employer status in many circumstances. Secretary of Labor Acosta is attempting to reverse a long series of court cases and interpretations via regulation. The joint employer standard was among the Obama-era federal regulations the Trump administration had targeted for change. The deadline for submitting comments to the proposed rule is June 10. FJ will be drafting comments to the proposed rule highlighting its potential impact on farmworkers.

Update on Farmworker Health and Safety

Court Orders EPA to Decide On Chlorpyrifos Ban within 90 Days

On April 19, the 9th Circuit Court of Appeals ordered the Environmental Protection Agency (EPA) to decide within 90 days whether to ban chlorpyrifos, a highly toxic pesticide. A 3-judge panel of the Court had ordered the EPA to ban the chemical last year, but the EPA appealed for a hearing by the full Court. The EPA had proposed to ban chlorpyrifos in 2016 based on its own scientific findings, but in 2017 then Administrator Scott Pruitt reversed the agency’s decision and said that the EPA would study the issue until 2022.  Now, the EPA must decide whether to allow continued use of the chemical in agriculture by mid-July.

OSHA Safety Enforcement Continues to Decline

A recent National Employment Law Project (NELP) report details how enforcement activity by the Occupational Safety and Health Administration (OSHA) declined in 2017 and further declined in 2018. This trend is evident by the decrease of the following types of inspections: hazards causing musculoskeletal disorders (ergonomics), heat safety, worker exposure to dangerous chemicals, and operations with combustible dust. Another factor contributing to the decrease in workplace safety enforcement is OSHA’s failure to fill vacant inspector positions in a timely manner, with the number of OSHA inspectors currently at a historic low. This decrease in safety enforcement is occurring amid an increase in the number of fatality and catastrophe investigations, suggesting workplaces are becoming increasingly more dangerous. Additionally, OSHA has drastically reduced its issuance of press releases about enforcement activities, which help to serve as deterrents to employers who might otherwise relax their safety efforts.

Health Policy Bulletin on Green Tobacco Sickness

FJ is pleased to share its Winter 2019 Health Policy Bulletin. The topic highlighted in the 2019 Health Policy Bulletin is Green Tobacco Sickness. You can go to our website to view and download the issue.

Guest Blog about House Hearing on Immigration and Agriculture

Guest Blog about House Hearing on Immigration and Agriculture

By: Lizett Aguilar

Lizett Aguilar is an undergraduate senior currently interning for Farmworker Justice. She was born and raised in the farmworker community of California’s San Joaquin Valley and has worked as a farm worker, harvesting grapes alongside her family during the summers to help pay for her education since she was sixteen.  She attended the U.S. House Judiciary Subcommittee on Immigration’s hearing entitled “Securing the Future of American Agriculture” held on April 3, 2019.

I would first like to thank Congresswoman Zoe Lofgren for introducing the Agricultural Worker Program Act of 2019 in the House on January 17th, and for bringing much needed legislative attention to the crucial community of workers who feed this nation and the world. This act, colloquially known as the “Blue Card” bill, was one among a number of farmworker related topics discussed during the hearing. Other topics discussed included the H-2A visa program, current farm working conditions and immigration reform in a general context. I would also like to thank congress members Garcia, Correa, Escobar and Mucarsel-Powell who personally welcomed and thanked the farmworkers present at the hearing.

Attending the hearing was an eye-opening experience for me, as it often feels as though the progress being made for farmworkers is not enough, and it is a relief to know that the necessary conversations about the agricultural industry are being held by our elected officials capable of enacting legislative change. I will comment on a few of the testimonies and conversations held during the hearing, and bring up some concerns about the present nature of farm labor which I believe should have been discussed.

One of the most important questions and topics discussed during the hearing was the nature of farm labor itself. Congresswoman Pramila Jayapal began this conversation by asking witness Areli Arteaga what a regular day looked like. Ms. Arteaga spoke about her family’s background in farm labor during her introduction and was able to expand on her personal experience as a farm worker in Idaho. Ms. Arteaga explained that her first farm labor experience was at age nine. This brought to light the common experience of the children of farmworkers who work alongside their parents at very young ages to financially contribute to the family. Ms. Arteaga then spoke about waking up at extremely early hours of the day and described the arduous working conditions she was exposed to. She would find herself soaked in sweat underneath her raincoat by noon when she was de-tasseling corn, unable to opt out of wearing it because it was needed to protect her from the humidity. She also described working on both knees for ten to twelve hours a day if one was picking strawberries. Farm labor is often undervalued by being labeled as “unskilled” labor and Ms. Arteaga challenged this notion by describing the difficult nature of the industry and testifying to how physically demanding being a farmworker is.

Another important conversation connected to the difficult nature of farm labor was the question of allowing farmworkers to earn legal status and the effects of doing so. When asked about the possible impact of farmworkers obtaining Permanent Lawful Status by Rep. Ken Buck, an agricultural employer witness responded by stating that workers were going to leave and find work elsewhere. This response brings attention to two important aspects of farm labor. First, it brings attention to the difficult nature of farm labor. If workers are willing to leave to different jobs, one of the factors contributing to this is the fact that farm labor is very harsh and difficult on the body compared to other similarly paid jobs. The other issue this response raises is the socio-economic conditions farm labor relegates workers to. If workers are willing to leave as soon as they have the ability to do so, it is because the wages and general conditions are very low in comparison to other industries. Former UFW President Arturo Rodriguez testified to this reality, explaining that the economic conditions of farm labor must be elevated in order to keep workers in agriculture and to cease their treatment as second-class citizens. Farmers, as testified by witness Tom Nassif, President and CEO of Western Growers, often state that H-2A farm workers have good living and working conditions and higher wages, however, if farmers also state that these same workers are willing to leave on the first chance they get, then their working, living, and socio-economic conditions are not as good as farmers state they are. I wish these points had been brought up by the committee’s members because it would have continued to shed light on the daily plight of farm workers, both the undocumented and those under H-2A visas.

Lastly, I wish the committee members had called attention to the rhetoric used by fellow committee members and witnesses which shifted the conversation about farmworkers to a discussion centered around their commodification as a source of labor; further drawing less importance to other aspects of farm worker conditions. Much of the conversation regarding the need to change the current H-2A visa program and the potential to provide a pathway to legal status for farmworkers was centered around ensuring American farmers had a cheap and reliant supply of labor, and not about the ways in which the H-2A program or the Blue Card Bill could improve the socio-economic, political, and familial well-being of farm workers. If Congress plans to create equitable reform for farm workers and the agricultural industry, it must humanize its integral workers instead of perpetuating a system which exploits their labor.  

Farmworker Justice Update - April 3 Hearing on Immigration and Agriculture

Farmworker Justice Update: House Hearing on Immigration and Agriculture

On April 3, the House Judiciary Subcommittee on Immigration and Citizenship held a hearing entitled “Securing the Future of American Agriculture.” The witnesses at the hearing included Arturo Rodriguez (Former UFW President), Tom Nassif (President of the Western Growers Association), Bill Brim (President of Lewis Taylor Farms) and Areli Arteaga, a child of farmworkers and former farmworker who now works for the UFW. The Representatives present during at least part of the hearing were Reps. Lofgren (D-CA), Jayapal (D-WA), Correa (D-CA), Neguse (D-CO), Escobar (D-TX), Mucarsel-Powell (D-FL), Garcia (D-TX), Buck (R-CO), Collins (R-GA) and Armstrong (R-ND). Rep. Panetta (D-CA) was also present in the audience, though he is not a member of the Subcommittee on Immigration.

Opening Statements

At the start of the hearing, Zoe Lofgren (D-CA), the Chair of the Subcommittee, highlighted the current lack of options for farmworkers to gain lawful immigration status and stressed that there should be a “seat at America’s table for those who have long grown the food served on it.” Rep. Lofgren mentioned her bill, the “Agricultural Worker Program Act of 2019,” as a way to ensure that farmworkers have a path to permanent residency and eventual citizenship. She noted that on average farmworkers have been in the country for 18 years and that many constituents are “still in business because of them.”

Rep. Buck (R-CO), the Ranking Member of the Subcommittee, focused on criticizing the H-2A program as “cumbersome and full of red tape,” while at the same time seeking expansion of the temporary and seasonal H-2A program to the year-round dairy industry. His comments were consistent with grower complaints about the H-2A program and their desire for a program with little government oversight and minimal worker protection.

Witness Testimony

During his testimony, Mr. Rodriguez highlighted the vital role of immigrant farmworkers in feeding the country and stressed that they cannot continue to be treated like second class workers. Mr. Rodriguez was joined at the hearing by multiple UFW members who work in a variety of crops and collectively have over 200 years of experience in working in agriculture. Mr. Rodriguez stated that the goal of any new proposal must be the improvement of farmworker wages and working conditions.  Among the principles he identified which should be included in any new farmworker immigration proposal are fairness, equality of treatment, non-discrimination, economic freedom and the ability to attain permanent residency.

Mr. Nassif recognized the contributions of immigrant farmworkers and stated that there should be a path to legal status for long-standing workers and their families without the need for a “touchback.” With regard to the H-2A program, he stated that any “remake” of the guestworker program should not be an “administrative nightmare.” He also stressed, both in his initial testimony and in discussing a future worker program, that the agricultural guestworker program should not have a cap (the H-2A program currently has no cap, which has allowed for its rapid growth). Mr. Nassif also spoke specifically about the dairy industry and their desire to be included in the H-2A program.

Ms. Arteaga gave a personal account of what life was like as the child of a dairy worker and a farmworker, having grown up on the dairy farm where her father worked. She described her family’s hard work and long hours, as well as the difficult choice her father made to leave his employer, who was not treating him fairly, even though he knew it would mean losing their family’s housing as well. She also noted the unfairness of farmworkers not being provided overtime, describing her feelings as a youth working in agriculture and not being paid overtime despite her long hours, even though other young people her age were paid overtime for hours worked in jobs such as retail.

Mr. Brim criticized the regulations, monitoring, and cost of the H-2A program, despite his company’s own longtime use of the program for over 20 years. (In 2008, Mr. Brim was sued by H-2A workers who had worked at his farm, Lewis Taylor Farms. The basis of the lawsuit was claims that Mr. Brim’s farms failed to pay the workers required wages and reimburse them for transportation and other expenses. The case settled in 2010.) 

Statements and Questions from Members of Congress

Rep. Collins (R-GA), who is the Ranking Member of the Judiciary Committee, criticized the H-2A program as not offering enough “flexibility” for employers. As part of his statement, he referred to the Adverse Effect Wage Rate (AEWR) as an artificially high wage rate and characterized the current H-2A program as “unsustainable.” In fact, the AEWR is merely the average wage paid to farmworkers, as determined by a USDA survey of agricultural employers, and thus not “artificially high.” 

Rep. Jayapal (D-WA), who is the Vice-Chair of the Immigration Subcommittee, expressed respect for the “back-breaking” work done by farmworkers. She asked Ms. Arteaga whether she considered agricultural work “low-skilled” work. Ms. Arteaga detailed some of the many tasks performed by her parents and stated that she thinks the work requires a lot of skill and experience.

Rep. Buck (R-CO) expressed concern that if agricultural workers are able to get green card status or other permanent legal status, they would no longer stay in agriculture. He also mentioned the possibility of establishing a green card option for H-2A workers after a certain number of years, for example, 10 years, or something else that is “in the middle” between the H-2A program and a green card. (It is important to note that the Agricultural Worker Program Act has a requirement that workers continue to work in agriculture for 3-5 years in order to earn a green card. This provision was a compromise that resulted from employers’ concerns about the future availability of workers.)

Although both grower witnesses stated that they value farmworkers, and that “their” workers want to keep working for them, they also similarly expressed concern that if workers were able to get legal immigration status, they would leave their jobs. Mr. Rodriguez noted that most of the farmworkers present at the hearing were legally authorized to work, and had been for years, and they still chose to continue working in agriculture. He stressed that the important thing is to “elevate the status” of workers, because workers stay when their wages allow them to provide for their families and they are given decent benefits and working conditions.

Rep. Correa (D-TX) welcomed and thanked the workers in Spanish. He stated that all workers should have a path to citizenship, not just agricultural workers specifically. In response, Mr. Nassif stated that his organization has advocated for a pathway to citizenship for the existing workforce, as this is something they have earned, and stated that their families should also be protected.

Rep. Armstrong (R-ND) stated that he often gets calls from agricultural employers who complain about the H-2A program and described it as a “program of last resort.” He focused on year-round operations such as dairy and asked the witnesses what could be done to “streamline” the H-2A process. He also asked if there had been any discussion on allocating visas by region. Another possibility he floated was that of allowing family farmers to sponsor foreign farmworkers, stating that farmers should be able to “keep the workers they want.”

Rep. Garcia (D-TX) thanked the workers, in Spanish, for their valuable work. She also described her experience as a teenager picking cotton. She noted that even though there is a generational difference between her and Ms. Arteaga, many of the challenges faced by farmworkers today have not improved. Rep. Garcia asked Ms. Arteaga what particular issue she would prioritize in addition to providing a path to immigration status for workers. Ms. Arteaga said it was difficult to pick just one issue, but that overtime is an important issue that would have greatly benefitted her family. In response to the same question, Mr. Rodriguez reiterated the importance of elevating farmworkers’ economic situation and how unfair it is to expect workers to continue to do this difficult work without paying them a decent wage like everybody else. Rep. Garcia also stated that she was pleased to hear Mr. Nassif mention the importance of family, because ultimately “the worker is not a machine.” She noted the need to go beyond the actual work that needs to be done, and understand that workers are human beings, who are also breadwinners and loved ones. She specifically mentioned the issue of child labor as well.

Rep. Neguse (D-CO) echoed the growers and his Republican counterparts in their calls to reform the H-2A program to benefit employers and specifically asked what needs to be done in order for dairy to be able to participate in the H-2A program. Mr. Nassif stated that the definition should be changed to include year-round industries. This desire to expand H-2A to dairy and other year-round industries conflicts with the purpose of the program being to fill seasonal or temporary jobs that may be less attractive because of the job insecurity and lower annual earnings.  Instead of expanding H-2A to dairy, the conditions for dairy workers must be improved - from occupational injuries and deaths to long hours with no overtime pay. 

Rep. Mucarsel-Powell (D-FL), after welcoming the workers in Spanish, noted that she hears concerns about agricultural labor both from agricultural employers and from farmworker advocates, including the issues of inadequate housing and wage theft. Rep. Mucarsel-Powell asked Mr. Rodriguez which aspects of the H-2A program should be retained and which need to be removed. Mr. Rodriguez mentioned wages and the importance of economic stability for workers, as well as the issues of housing and transportation, and how difficult it is for workers to secure these on their own. As he stated, “H-2A workers should be treated like any other worker.” Mr. Rodriguez also highlighted the importance of dealing with recruitment abuses in order to ensure that workers do not arrive indebted and afraid.

Rep. Escobar (D-TX) also welcomed the workers in Spanish. Rep. Escobar gave Ms. Arteaga the opportunity to respond to the claim that if workers were able to get a green card they would abandon their jobs. Ms Arteaga responded that being a farmworker is a fundamental part of who her parents, and other farmworkers she knows, are. Rep. Escobar also asked Mr. Rodriguez if he thought farmworkers had earned a path to immigration status, to which he responded that there is “no doubt” about that.

Importance of Immigration Protections for Current, Experienced Workforce

Something that was never in dispute among the different witnesses and Representatives at the hearing is that there is a currently an experienced workforce willing to do the difficult and dangerous work of feeding this country, that they are essential to the success of agricultural employers’ businesses, and that they currently do not have a path to permanent residence or citizenship.

Farmworker Justice believes the solution to the agricultural industry’s reliance on immigrant workers must be to respect the contributions and humanity of those workers, whether they are currently undocumented or in the H-2A program. The Agricultural Worker Program Act (H.R. 641, S. 175), introduced in the House by Rep. Lofgren and in the Senate by Sen. Feinstein (D-CA) would do that by providing an opportunity to move forward a positive and workable solution in Congress that will meet the needs of workers, agricultural employers, and our food system. 

Additionally, any future guestworker program must ensure that farmworkers have a roadmap to immigration status and citizenship, true economic freedom and opportunity, and equality of treatment with other workers. Additionally, there should be no incentives to discriminate against U.S. workers (including newly legalized workers). Family unity is another key principle that should be advanced - neither undocumented workers nor guestworkers should have to endure being separated from their families. Additionally, to prevent recruitment abuses, any program must clearly prohibit fraud and any recruitment fees or costs for visa workers as well as require transparency in the recruitment process, along with adequate enforcement. 

As Rep. Garcia stated, farmworkers are not machines. They are human beings, with identities and aspirations that include, but are not limited to, the work that they do. The message this country is currently sending to farmworkers with its broken immigration system is clear: we will let you feed us and work for us, but we will not let you be a part of us. We must respect the humanity of farmworkers and treat them as we would treat others who contribute to our nation’s success, offering them the opportunity to be permanent members of our society and the communities they help build.

To view the full hearing on “Securing the Future of American Agriculture,” please click here.

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