Immigration and Labor Rights

Farmworker Justice Update: 11/29/08

Ag Employers Seek to Avoid 2019 H-2A Wage Increases

In a November 28 letter to Labor Secretary Alexander Acosta and Secretary of Agriculture Sonny Perdue, the National Council of Agricultural Employers (NCAE) asked for “short-term relief” from the federal government from the expected Adverse Effect Wage Rate (AEWR) for H-2A workers. On November 15, the National Agricultural Statistics Service (NASS) released a report showing the average wages paid to nonsupervisory field and livestock workers for 2018.  As stated in the current regulations, the 2019 AEWR will be these wage rates. Based on the data, hourly wages would increase approximately 6% nationwide, with higher increases for some states.  The NCAE refers to the AEWR as a “premium wage;” however, this term is fundamentally and disingenuously wrong as the AEWR is merely the average wage paid to nonsupervisory field and livestock workers as determined by USDA’s farm labor survey. By definition, an average means that some employers pay more than the average wage. One would expect that an employer truly facing a labor shortage would seek to attract U.S. workers by offering more than the average wage, and yet the H-2A program allows employers to demonstrate a labor shortage merely by offering the average.

Failing to implement the AEWR – which would effectively lower H-2A wage rates in most areas around the country in 2019 – would adversely affect the wages and working conditions of U.S. workers.  Farmworkers’ wages are among the lowest in the nation, but by several measures have been increasing modestly in the last few years. In California, a wage freeze would keep the AEWR at $13.18 (which was the 2018 AEWR based on 2017 USDA surveys), instead of rising to $13.92.  In North Carolina and Virginia, the rate would be frozen at $11.46 per hour, instead of rising in 2019 to $12.25. In Idaho (and Montana and Wyoming), the freeze would keep wages at $11.63 per hour instead of rising to $13.48. In Florida, the freeze would stop a slight drop of 5 cents per hour. There is a long history of regulation and litigation regarding the AEWR, and we anticipate that Farmworker Justice and others would litigate against the Administration if it attempts to undermine U.S. farmworkers’ wages by lowering H-2A program wage rates.    

California Ag Employer Reaches Settlement over Farmworker Transportation Pay

Earlier this month, California agricultural company Fresh Harvest Inc., agreed to pay $1 million in back wages to farmworkers under a settlement agreement. Fresh Harvest, which is a component of the Scaroni Family of Companies, bills itself as one of the largest H-2A employers in the Western United States. The agreement was the result of a lawsuit filed by the United Farm Workers (UFW) and California Rural Legal Assistance, Inc. (CRLA), which sought unpaid wages for workers’ uncompensated travel and waiting time, as well as damages for violations of state and federal labor law. Workers’ travel to and from work sites averaged two or more hours each day and workers additionally had various wait times beyond their control, for which they were not compensated. Workers were also retailed against after cooperating with an investigation of one of the company’s crew leaders. The settlement agreement will likely be finalized in December.

Farmworker Group Alleges Targeting by ICE Due to Activism

On November 14, worker rights’ group Migrant Justice filed a lawsuit claiming the group has been targeted by the Department of Homeland Security (DHS) in an attempt to suppress its activism. The lawsuit was brought by the ACLU of Vermont, the Center for Constitutional Rights, the National Center for Law and Economic Justice, the National Immigration Law Center and a private law firm. At least 20 members of Migrant Justice have been arrested and detained by ICE in the past five years. The lawsuit claims that these arrests were “part of a pattern of ICE expending significant resources to target, surveil and detain immigrant activists and leaders across the country in response to their protected political speech and activity.” Migrant Justice, based in Vermont, is known for its Milk with Dignity campaign and support of immigrant farmworkers.

President Trump Threatens to Shut Down Government over Border Wall Funding

In late September, Congress passed a temporary spending bill, called a continuing resolution (CR), to fund various government agencies, including the Department of Homeland Security (DHS). The current CR expires on December 7, which means that Congress must agree to an appropriations bill for FY 2019 by that date or else risk a government shutdown. The DHS bill includes funding for immigration enforcement. President Trump is insisting on $5 billion in funds for border wall construction and threatening to push for a government shutdown if that amount is not agreed to. Senate spending bills must clear 60 votes to pass, which means that any funding legislation would need some Democratic support.

Update on Farmworker Health and Safety

Farmworkers Still Working Amidst California Fires

While fires ravaged California in the past few weeks, many farmworkers were pressured to continue working among the dangerous conditions, often without protective equipment. State law requires employers to provide protective gear as well as train employees on how to use the gear effectively. However, according to local farmworker groups, only some employers complied with these obligations. Strawberry pickers in the region reported experiencing sore eyes, upset stomachs, headaches and dizziness as a result of the smoke. Approximately 36,000 farmworkers may have been exposed to the dangerous air caused by the wildfires. Many are undocumented and/or speak indigenous languages and may be hesitant to complain about safety violations for fear of retaliation.

Farmworkers and Hurricane Florence’s Aftermath

A recent Civil Eats article details the challenges faced by undocumented farmworkers during and after Hurricane Florence’s landfall in North Carolina in September. Undocumented communities’ challenges after natural disasters are compounded by the inability to access needed services, including food and shelter. The article describes relief efforts by local groups such as the Episcopal Farmworker Ministry and the Kinston Community Health Center in the aftermath of the storm.

Dairy Worker Dies in Manure Pit

Tragically, yet another dairy worker has died as a result of driving into a manure holding pit. The 22-year old farmworker in Ohio drowned after the skid steer he was driving went into the pit. As stated in this news article, working around manure storage areas has many potential dangers, which is why it is so important that workers be adequately trained to work safely in these areas and be aware of equipment hazards.

OSHA Small Farm Exemption

A recent Atlantic article delves into the impact of the small farm exemption, which prohibits Occupational Safety and Health Administration (OSHA) investigations into fatalities at farms with 10 or less non-family employees. The exemption, put into an appropriations bill over four decades ago, gives small farms immunity from the agency’s oversight. The exemption also prevents the use of federal funds for training and guidance to small farms on how to comply with safety standards and potentially prevent future accidents. Congress should stop inserting the annual appropriations rider that prohibits enforcement of OSHA standards on small farms.

Immigrant Families’ SNAP Participation Dropped in 2018

New research confirms what many health advocates feared: immigrant families’ participation in the Supplemental Nutrition Assistance Program (SNAP) declined by approximately 10% in the first half of 2018, following a decade of increased participation in the program. Given that the eligibility rules for the program remained unchanged between 2017 and 2018, researchers believe that the drop in participation is related to changes in national immigration rhetoric and policies.

As a reminder, the Trump Administration recently published a proposed “public charge” rule that could further reduce immigrants’ access to essential nutrition and health services. Comments on the proposed rule are due on December 10. For more information on how the rule could affect farmworkers, please see Farmworker Justice’s fact sheet and template comments.

Farmworker Justice Update: 11/09/18

Rulemakings Related to the H-2A Program

Today, the Department of Labor’s Employment and Training Administration (DOL ETA) issued notices of proposed rulemaking regarding the recruitment requirements for the H-2 visa programs, both H-2A and H-2B. Farmworker Justice plans to draft comments on this proposal to ensure that recruitment protections for U.S. workers are not weakened. Comments are due December 10.

Last month, DOL ETA announced a proposed revision of the forms used for employer certification under the H-2A temporary agricultural worker visa program. The two forms being revised are Form ETA-9142A, which is the form employers use to apply for H-2A workers, and Form 790, which is the agricultural clearance order that contains job terms and instructions for job applicants. FJ will also draft comments for this rulemaking (the deadline for these comments is December 24).
Additionally, FJ is anticipating that, as announced in DOL’s fall regulatory agenda, there will be a broader set of proposed changes related to the H-2A program published in the coming months. FJ is deeply concerned that the anticipated changes could reduce critically important farmworker protections in the H-2A program. FJ will continue to monitor any administrative attempts to undo the current protections in the H-2A program.

USDA Proposed Changes to Farm Labor Survey Used in H-2A Program

Farmworker Justice submitted comments on November 8 to the US Department of Agriculture (USDA) regarding its proposal to make changes in its Agricultural Labor Survey (ALS), formerly known as the Farm Labor Survey.  The ALS includes data from farm operators regarding the wages paid to farmworkers. Although there are shortcomings in the survey that limit is value, it provides helpful information. For many years the Department of Labor has set the H-2A program “adverse effect wage rates” for each state based on the ALS findings for average hourly earnings of the combined category of field and livestock workers. The proposed change in the survey regarding wage reporting contained vague and troubling language that could lead to understating farmworkers’ wage rates and artificially lowering the minimum wage rates required under the H-2A program.  FJ therefore opposed some of the proposed revisions to the survey’s questions.

Washington Ag Employer Fined for Discrimination, Sexual Harassment and Retaliation  

Last month, the Washington State Attorney General announced a consent decree ordering Horning Brothers, LLC, an agricultural employer, to pay $525,000 for claims of sexual harassment, sex discrimination and retaliation. The company must also adopt non-discrimination and anti-retaliation policies. The Northwest Justice Project worked on the case alongside the WA Attorney General, and represented five of the affected workers. In a lawsuit filed last year, the plaintiffs alleged that the company, which owns an onion packing shed, only hired women to sort onions on the packing line, and limited the hiring of women for other positions. Furthermore, the company ignored female employees’ complaints about sexual harassment by one of its foremen, and retaliated against those who complained. This case highlights that discrimination and harassment are unfortunately still very prevalent for women in the agricultural industry.

Massachusetts Overtime Pay Case for Agricultural Workers

On November 5, the Massachusetts Supreme Judicial Court heard oral arguments in a case which has the potential to award overtime pay for workers who clean, pack and sort bean sprouts at an indoor growing and packing facility. The case presents an issue of first impression under Massachusetts law, which, like federal law, excludes farmworkers from the right to overtime pay. Generally, workers in a processing plant are not considered agricultural workers for purposes of the overtime exemption. Farmworker Justice has supported efforts to amend federal and state employment laws to end the discriminatory exemption of agricultural employers from paying agricultural workers overtime.  

Ballot Measures Increasing Minimum Wage Succeed in Arkansas and Missouri

Two ballot measures increasing state minimum wages succeeded in the November 6 midterm election. The state of Arkansas voted to gradually increase its minimum wage from $8.50 an hour to $11 an hour within the next three years, while Missouri voters approved a gradual increase from $7.85 an hour to $12 an hour within the next five years, with further adjustments based on the consumer price index. However, some exemptions for particular agricultural businesses and farmworkers from the minimum laws in these states mean that some farmworkers will not benefit from these changes. There are exceptions in the state laws applicable specifically to agriculture that are similar to those in the federal Fair Labor Standards Act (FLSA), including for small agricultural employers; livestock workers on the open range; family members of the farm operator; children under age 16 employed on piece rate; and for those farmworkers who are hired on piece-rates to do harvesting and worked in agriculture less than 13 weeks in a prior year.  

Mixed Midterm Election Results

The November 6 midterm elections led to mixed results for Congress: Democrats were able to take control of the House, while Republicans deepened their control of the Senate. The prospects for progress on legislation that would benefit farmworkers remain very limited, but several proposals in the last Congress that threatened farmworkers’ employment rights and immigration status are not likely to proceed in this Congress. With Democrats assuming leadership roles in key House committees in January, they will be poised to conduct oversight over the President’s actions, as well as the policies of government agencies such as the Department of Homeland Security (DHS), the Department of Labor (DOL), the Environmental Protection Agency (EPA) and the Department of Agriculture (USDA). Each party will also soon be selecting its internal party leadership. House GOP leadership elections are scheduled for November 14, with Jim Jordan (R-OH) and Kevin McCarthy (R-CA) competing for the role of minority leader.  Rep. Nancy Pelosi (D-CA) has announced her campaign for Speaker of the House, the position she held when Democrats previously held the majority of House seats.

Government Asks Supreme Court to Intervene in DACA Cases As Program Continues

Yesterday, a federal court in California continued the injunction against the Trump Administration that prevents it from terminating the Deferred Action for Childhood Arrivals (DACA) program. The 9th Circuit Court of Appeals ruled unanimously in favor of the preliminary injunction issued earlier this year by U.S. District Judge William Alsup, which kept DACA operational while its future continues to be litigated. Two other decisions by federal judges earlier this year, in New York and Washington, D.C., also led to injunctions against the Administration’s decision to end the DACA program, thus allowing DACA recipients to renew their applications. Since January 2018, approximately 180,000 DACA recipients have renewed their applications.

Earlier this week, the Department of Justice (DOJ) petitioned the Supreme Court to fast track these DACA cases. If the Supreme Court grants certiorari and decides to take the cases, the earliest a ruling could be expected is June 2019.  If you or someone you know has DACA status which expires within the next 6 months, experts recommend that you consult with an immigration attorney and submit your renewal application. Unfortunately, at this time, no first-time DACA applications are being accepted. You can learn more about the status of current DACA cases, as well as steps to take to renew your DACA status here.    

 Jeff Sessions No Longer Attorney General

On November 7, President Trump announced via Twitter that Jeff Sessions will no longer be serving as Attorney General, the highest post in the Department of Justice (DOJ), having been forced to resign immediately after the election. Matthew G. Whitaker, who was the Justice Department Chief of Staff, was appointed Acting Attorney General until a permanent replacement is confirmed. During his tenure as Attorney General, Sessions, a former Senator from Alabama, pursued a strenuous agenda antagonistic to immigrants, civil rights and liberties, and criminal justice reform.  

Update on Farmworker Health and Safety

Scientific Paper on Pesticide Exposure and Children’s Neurodevelopment

A new scientific paper details the dangers that organophosphates, which are widely used agricultural pesticides, pose to children’s health and development. The researchers found that even low levels of exposure can lead to cognitive problems in children. One of these pesticides, chlorpyrifos, was on track to be banned by the Environmental Protection Agency (EPA), but the current Administration ignored the findings of its own scientists and has allowed continued use of the neurotoxin. Worker and health advocates challenged the Administration’s reversal, and that litigation is currently ongoing (as detailed in previous FJ updates.) The paper also sets out some recommendations that could result in substantial reductions in pesticide exposure. You can read the full paper here.

Report on Impact of Heat Stress on Florida Workers

A recently released report by Public Citizen and the Farmworker Association of Florida details the impact of heat stress on Florida workers. According to the report, farmworkers and construction workers are the highest risk populations, not just because of their exposure to heat, but also because of other factors, such as fear of immigration enforcement, which might make them less likely to voice health or safety concerns. The threat of heat illness is growing due to rising global temperatures. As mentioned in previous updates, FJ, along with Public Citizen and many others, is involved in a national campaign for a federal heat stress standard. If you are interested in supporting this campaign, please contact FJ’s Director of Occupational & Environmental Health, Virginia Ruiz, at [email protected].

Farmwork Among Fifteen Most Dangerous Jobs Based on Fatality and Injury Rates

 A recent article ranks jobs based on occupational fatality and injury rates of the Bureau of Labor Statistics (BLS) data. It states that agricultural workers (separate from farmers) have the 11th most dangerous job while also having the lowest wages on the list of 15 most dangerous jobs. The article calculated that farmworkers are five times more likely to have a fatal injury than the average worker. The most common cause of fatal injury for most of the occupations, including farmworkers, was transportation accidents. The article may understate the dangers of agricultural work. The BLS data for 2016 by industry shows that the farming, fishing and forestry category had the highest rate of fatalities per 100,000 workers, at 23.2, over 6 times the 3.6 overall average rate. At a more detailed level, in crop production, the rate of fatalities per 100,000 workers was 20.9, higher than mining and construction and only slightly lower than transportation. The rate for animal production and aquaculture was 20.9.  
 

H-2A Program Growing at Unprecedented Rate; Worker Protections at Risk

The latest Department of Labor data show tremendous growth in the H-2A temporary foreign agricultural worker program.  The DOL approved almost a quarter of a million—a total of 242,762—H-2A positions in fiscal year 2018. In just the last year, the number of approved H-2A jobs grew by 21% and the number of employer applications grew by over 16%. The program has tripled in size in the last decade: in 2008, 82,000 positions were certified.

Continued massive expansion of the H-2A program is expected as there is no cap on the number of workers who may be brought in on H-2A visas. Moreover, the anti-immigrant rhetoric and actions of the Trump Administration and its allies in Congress are further driving the increase of the H-2A program.  In the absence of immigration reform that would grant legal immigration status to current undocumented farmworkers, each year more employers request and receive approval to hire H-2A workers. The Administration’s anti-immigrant and nativist agenda is highlighted by their support for an exploitative model of temporary indentured workers rather than an immigration system that welcomes immigrants and new citizens.

This rapid growth of the H-2A program is deeply troubling because the H-2A program exploits both guestworkers and domestic workers and should not be expanded. A recent example highlights the abusive nature of the H-2A program. Over the summer, the Department of Labor’s Wage and Hour Division (DOL WHD) won a court injunction against an H-2A employer in Missouri. WHD investigators found that in addition to wage violations, the employer had provided unsanitary and unsafe housing, with some of the workers housed in a former jail.  Workers reported fainting from heat stroke, and the fields where they were working lacked adequate access to water and restroom facilities. This example is far from unique. The anti-trafficking organization Polaris recently released a report on human trafficking in temporary work visa programs which showed that the category with the most reported trafficking cases—over 300—was the H-2A program.

Unfortunately, the massive expansion of the H-2A program has not been accompanied by increased resources for enforcement of employers’ obligations. Moreover, we are seeing multiple efforts to strip labor protections from the program and allow new categories of businesses access to captive H-2A visa holders. For example, a rider was added to the FY 2019 House DHS appropriations bill that would expand the H-2A program to include year-round employment in agriculture. This change would undermine the intent of the H-2A program to address more-difficult-to-fill temporary and seasonal jobs. It also would result in displacing many of the documented and undocumented immigrants who depend on these jobs for their livelihood, ensure their employers’ productivity and are integral members of their rural communities.

Another threat comes from anticipated changes to regulations to eliminate key protections in the program.  In May 2018, the DOL, DHS, State Department, and USDA jointly announced their intent to “modernize” and “streamline” the H-2A program to “deliver for America’s farmers.” The DOL’s recently-published regulatory agenda includes several proposed changes in the H-2A program. Farmworker Justice is concerned that the Administration will seek to strip away essential labor protections and oversight.

Farmworker Justice opposes any changes to the H-2A program that would expand the scope of the program to year-round work or that would lower wages or otherwise reduce worker protections or DOL oversight. Policymakers should not convert our agricultural workforce into a massive system of indentured temporary workers deprived of the right to vote.  A key solution to reforming our broken immigration system is providing a path to immigration status and citizenship for farmworkers and their families.

H-2A Program Trends and Observations

Growth in States

• From FY 2017 to FY 2018, several states saw significantly large increases in program usage, including an increase of 38% in Georgia, 34% in Washington, 30% in Michigan, 24% in Arizona and California, and 20% in Florida.  
• Georgia is now the number one state for number of H-2A positions certified, with 32,364 positions certified; Florida is in a close second at 30,462 positions certified.  With an estimated total of roughly 61,000 farmworkers in Georgia, the number of H-2A jobs approved accounts for about half of all farmworkers in Georgia.[1]

H-2A Top Employers

• The top three employers in the H-2A program are labor contractors or growers’ associations, rather than individual farms.
• Top employers have increasingly been using the H-2A program to fill non-agricultural tasks such as construction in farming operations. For example, a recent article detailed employers’ use of the H-2A program to fill farm construction jobs with H-2A workers. One of the companies mentioned in the article, Alewelt Concrete, Inc, was the fifth largest employer for all of the H-2A program in FY 2018.

Crops and Occupations in the H-2A Program

• The top crop for the H-2A program in FY 2018 was once again berries, at over 25,000 worker positions certified. The “General Farm Workers” category is a close second with about 24,000 worker positions certified.  Other top 10 crops/occupations include tobacco, apples, melons, fruits and vegetables, lettuce, corn, cherries, and nursery and greenhouse workers.


Source: Selected Statistics, FY 2018, H-2A Temporary Foreign Labor Certification Program, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor.


Farmworker Justice, October 30, 2018

[1] National and State Estimates of the Number of LSC-Eligible Agricultural Worker Populations, Table I Final State and National Estimates of the LSC-Eligible Agricultural Worker Population, Summary Table, available at https://lsc-live.app.box.com/s/dfsy78qhagsk12oxi6fr79pd5eq0geqp.

Farmworker Justice Update - 10/19/18

H-2A FY 2018 4Q Data Now Available

           The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently released H-2A program data for the fourth quarter of FY 2018. There were a total of 242,762 H-2A positions certified for all of FY 2018, an approximately 20% increase from FY 2017. This latest data is in line with the overall trend of exponential growth in the use of the H-2A temporary agricultural worker visa program in the last decade. The states of Georgia, Florida, Washington, North Carolina and California had the highest number of positions certified, accounting for over half of all positions.

Washington State Considering H-2A Filing Fees for Employers

           In response to the exponential growth of the H-2A program, as well as a lack of adequate resources from DOL to enforce the program and carry out its other program responsibilities, the Washington Employment Security Department is proposing to charge employers for their H-2A applications. Under the proposal, the department would charge employers $1,000 to use the H-2A program, plus an additional $100 per worker for the first thousand workers and $50 per worker after that. The Department estimates that the fees would raise approximately $3 million.

Settlement Reached in Washington H-2A Worker Retaliation Case

           Columbia Legal Services recently announced a settlement agreement between 18 H-2A workers and Familias Unidas por la Justicia (an agricultural workers’ union in Washington representing H-2A workers) and Larson Orchards. The settlement resulted from a lawsuit brought by the workers against Larson Orchards after they were retaliated against for participating in a strike in 2017. In spite of a written agreement prohibiting retaliation, the workers were not re-hired for the 2018 season. The settlement includes $275,800 with specific payments directly to the workers as well as a promise by Larson Orchards to include the workers on its list of preferred workers in 2019.

Grower Fined for Retaliating Against Workers Who Raised Workplace Safety Concerns

           The California Agricultural Labor Relations Board recently found that a Coachella Valley date grower illegally fired four workers after they voiced concerns about workplace conditions. The grower agreed to settle the matter without admitting liability. As part of the settlement, the company, KR Thermal, will re-hire the workers and pay them approximately $40,000 in lost wages. Charges were brought by the workers in 2017 alleging that they were fired after they expressed concerns over the safety of date harvesting equipment, a lack of functioning restrooms and other issues. The company employed the workers through farm labor contractor Desert Harvest and has now stopped using the labor contractor. A KR Thermal representative expressed that the labor contractor should be the one held accountable, while the labor contractor claimed that the grower was solely responsible. Under the CA Agricultural Labor Relations Act, an employer is responsible for the acts of a labor contractor.

DOJ Settles Immigration Discrimination Case with Poultry Company

           On October 9, the Department of Justice (DOJ) announced it had reached a settlement with Mar-Jac Poultry, Inc., a Georgia poultry processing company. Under the settlement agreement, Mar-Jac was assessed a civil penalty of $190,000. According to a complaint filed in 2011, Mar-Jac Poultry routinely required work-authorized non-U.S. citizens to present certain documents to prove their work authorization, but did not require similar documents from U.S. citizen employees. The Immigration and Nationality Act (INA) prohibits employers from subjecting employees to unnecessary documentary demands based on their citizenship status or national origin. The Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. IER’s worker hotline can be reached at 1-800-255-7688.

Rep. McCarthy Introduces Draconian Immigration Bill

           House Majority Leader Kevin McCarthy (R-CA) recently introduced a draconian anti-immigrant bill, the “Build the Wall, Enforce the Law Act of 2018” H.R. 7059.  Rep. McCarthy is hoping to lead the GOP conference next year as speaker or minority leader after the retirement of current Speaker Paul Ryan (WI). Other Republican representatives angling for the leadership role include Jim Jordan (OH) and Majority Whip Steve Scalise (LA). Among the McCarthy bill’s terrible provisions are over $20 billion in funds for the building of a border wall and billions more in funding to incarcerate families, children and asylum seekers indefinitely and without due process.

Senate Strikes Deal on Judicial Appointments, Starts Early Recess  

           The Senate went into early recess last week. It was originally scheduled to be in session until the end of October and was planning to spend the bulk of that time on judicial confirmations. Democratic leadership expected fifteen judicial nominations to be approved given the Republican majority in the Senate, and made the decision to agree to all the appointments and adjourn early to focus on vulnerable seats in the upcoming mid-term elections. With this latest round of confirmations, the Trump Administration has confirmed a total of 84 judges, including two Supreme Court justices. Various civil rights groups criticized the Senate deal, particularly given its timing after the highly controversial confirmation of Supreme Court Justice Brett Kavanaugh. The House already adjourned last month, and like the Senate, is not set to return until after the November 6 mid-term election.

 Farmworker Health and Safety

Public Charge Rule Posted in Federal Register

          On October 10, the Department of Homeland Security (DHS) posted its proposed rule on public charge. The proposed rule would drastically change how public charge determinations are made when individuals apply to enter the U.S, extend or change their non-immigrant visa (including H-2A and H-2B status), or adjust to lawful permanent resident (LPR) status. FJ’s statement on proposed changes to public charge can be found on our website. In the next few weeks, FJ will share template comments that can be modified by organizations. We encourage organizations to submit their own comments that include stories about the rule’s potential impact on the farmworker communities you serve. The comment period is open until December 10. FJ is a member of the Protecting Immigrant Families campaign and is supporting efforts to ensure a robust response to the proposed public charge rule. Contact Alexis Guild, FJ’s Senior Health Policy Analyst, at [email protected] for more information.

ACA Open Enrollment Begins November 1

          The 2019 open enrollment period for the health insurance marketplace begins on November 1.  In-person assistance is available to help consumers enroll and/or to answer any questions about their health insurance. Subsidies to lower the cost of health insurance continue to be available to consumers with a household income up to 400% FPL (federal poverty level). There will no longer be a penalty for not having health insurance in 2019. In most states, open enrollment ends December 15. You can find more information about open enrollment at healthcare.gov. FJ’s Affordable Care Act (ACA) guides for workers can be found in our resource center.  

Trump Administration Increases Poultry Line Speeds

           Labor, consumer and animal rights groups have decried the Trump Administration’s recent decision to allow faster speeds for poultry-processing plants. Plants will be able to obtain waivers to process up to 175 birds per minute, up from the previous limit of 140 birds per minute. Injury rates for poultry workers are 60% higher than the national average for all private industry, and line speeds play a role in the rate of injuries. The typical pay for a poultry-processing worker is about $25,000 a year, and the workforce is increasingly composed of immigrants. Earlier this year, the Trump Administration also proposed eliminating the current limits for hog processing line speeds, a proposal which has similarly received strong opposition from food safety and labor groups.

Farmworker Justice Update: 10/04/18

Farmworker Justice Update: 10/04/18

President Signs FY 2019 Appropriations Package, Including CR for Various Pending Bills

On September 28, President Trump signed a spending package for FY 2019, which began October 1. The package includes full-year funding for various programs, such as defense, education, health and labor. It also includes a short-term continuing resolution (CR) lasting through December 7 for other remaining appropriations bills, meaning these remaining bills were simply extended from the previous year. The appropriations bills for agriculture and homeland security are among those included in the CR. As noted in previous FJ updates, each of these two proposed FY 2019 appropriations bills has troubling language regarding the H-2A temporary agricultural worker visa program. These provisions may still be included in the final FY 2019 appropriations bills. FJ will continue to monitor these bills.

Farm Bill Lapses After Congress is Unable to Reach Agreement

Another bill facing a September 30 deadline was the Farm Bill, which expired on this date after Congress was unable to reach a consensus for reauthorization. One of the main points of disagreement between the House and Senate was a House provision to attach work requirements to the Supplemental Nutrition Assistance Program (SNAP). FJ is also concerned by an attempt by the House to include the Pesticide Registration Improvement Act (PRIA) in the Farm Bill without key safety protections for farmworkers that were included in the Senate version of PRIA. FJ will continue to advocate for the House to pass the Senate version of PRIA as a standalone bill, in order to ensure both certainty for the pesticide registration program and adequate protections for farmworkers. The House is currently in recess until after the November 6 midterm elections. Many representatives will be back in their home districts campaigning during the month of October.

Canada Joins the U.S. and Mexico in New North American Trade Deal

On September 30, the United States, Mexico and Canada finalized a proposed new North American free trade agreement between the three countries. The new agreement, which would substitute the current North American Free Trade Agreement (NAFTA), is called the United States-Mexico-Canada Agreement, or USMCA. Among the multiple changes to NAFTA in the new agreement is the opening of the Canadian market to more U.S. dairy products, which was one of the most contentious issues in the negotiations between the U.S. and Canada.  The new agreement includes several labor protections that, under NAFTA, were placed in a “side agreement” called the North American Agreement on Labor Cooperation. Farmworker Justice and others have sought to enforce these protections for farmworkers in the U.S. The new agreement also includes a specific section focused on improving the rights to organize unions and engage in collective bargaining in Mexico. For more information, the full agreement is available at the Office of the U.S. Trade Representative’s website, including the agreement’s chapter on labor (Chapter 23).  The agreement still has to be approved internally in each of the three countries before it can go into effect. We will be providing further analysis at a later date.

Federal Judge Temporarily Blocks TPS Termination for Four Countries

On October 3, a federal judge in California blocked the Trump Administration’s decision to terminate temporary protected status (TPS) for individuals from Haiti, El Salvador, Nicaragua and Sudan. Approximately 300,000 individuals have been granted relief by the order, which resulted from a class action lawsuit alleging that the Administration’s decision to end TPS for these countries was in violation of the Administrative Procedures Act and was driven by racial animus. As a result of the decision, DHS is prohibited from terminating TPS for these countries pending the outcome of the case, unless there is an adverse decision on appeal. There are currently various other ongoing lawsuits regarding the Administration’s decision to terminate TPS for these countries, as well as a lawsuit related to the termination of TPS for Honduras.

Legal Victory in North Carolina for Farmworker Bargaining Rights

On September 20, a federal court in North Carolina issued an injunction against the North Carolina Farm Act of 2017, which sought to limit farmworkers’ rights to unionize and bargain collectively. The NC Farm Act was primarily sponsored by a NC state senator who is also a farm owner and had been sued for wage theft by his employees, with the help of the Farm Labor Organizing Committee (FLOC), North Carolina’s only farmworker union. The law prevents farmworkers and companies from agreeing to have union dues deducted from paychecks.  It also prevents settlements of lawsuits against a farm from including any agreements with an agricultural labor union. The Farm Act was challenged by FLOC, two individual farmworkers and a coalition of civil rights groups on the basis that it intentionally discriminates against farmworkers, more than 90% of whom are Latino. The court found that the Farm Act likely violates farmworkers’ Fourteenth Amendment right to equal protection and blocked its implementation.

Farmworkers Extremely Vulnerable During Hurricanes

As detailed in this Atlantic piece, farmworkers face unique challenges as the impact of a hurricane is exacerbated by their low wages, the broken immigration system and isolation. A recent Buzzfeed article recounts the disturbing story of a group of H-2A workers whose housing flooded during Hurricane Florence and whose requests for rescue were ignored. The workers were located in an isolated migrant labor camp in Jones County, in eastern North Carolina. When floodwaters started rising, the workers called 911. Although emergency crews were initially dispatched, the rescue was called off because the farm owner told authorities that the workers were fine. The workers reached out to local advocates, who also contacted 911 on their behalf,. The workers were eventually rescued by an employee of the North Carolina Growers Association and taken to a nearby shelter. They were thankfully unharmed. However, this story illustrates the vulnerability of H-2A workers and the extreme level of control that employers in the program have over fellow human beings. It is particularly absurd that emergency crews relied on the employers’ assessment of the situation rather than on the individuals actually calling for help.

Update on Farmworker Health and Safety

Public Charge Rule Text Released by DHS

On September 22, the Department of Homeland Security (DHS) released text of a proposed public charge rule; however, the proposed rule still has not been officially published for notice and comment. This rule would drastically expand the circumstances under which a person can be deemed a public charge. Use of benefits such as Medicaid and SNAP as well as a household income below 125% of FPL would be considered heavily weighed negative factors in an individual’s public charge determination. The proposed changes would make it more difficult for low-income farmworkers to enter the U.S. or adjust to Lawful Permanent Resident (green card) status. FJ condemns the proposed changes. Our statement can be found on our website. Shortly after the proposed rule is officially published in the Federal Register, FJ will share template comments with our network. We encourage everyone to submit comments and share stories about the rule’s impact on farmworker families in your community. For more information, please contact FJ’s Senior Health Policy Analyst, Alexis Guild, at [email protected]. FJ is also a member of the Protecting Immigrant Families campaign, which provides analysis and advocacy on this issue.

EPA Asks Court to Rehear Chlorpyrifos Case

On September 24, the U.S. Environmental Protection Agency (EPA) asked the Ninth Circuit Court of Appeals for a new hearing regarding the pesticide chlorpyrifos. As detailed in previous FJ updates, the Court had issued an order in August requiring the EPA to ban chlorpyrifos within 60 days, in accordance with the EPA’s own scientific evidence. The EPA’s request for a rehearing means yet another delay for the protection of public health, a situation which will particularly impact farmworkers and their children. FJ is one of the plaintiffs in the case.

Removal of EPA Child Health Expert Raises Concerns about Office’s Future

Last week, the EPA unexpectedly placed the director of the agency’s Office of Children’s Health Protection (OCHP), Ruth Etzel, on administrative leave. Many advocates are concerned that this decision might signal an elimination or weakening of the office as a whole. The EPA OCHP was formed in 1997, based on mounting scientific evidence that children and infants are uniquely sensitive to exposure to toxic chemicals such as pesticides. FJ believes that the OCHP plays a vital role in the protection of children, particularly farmworker children, from the negative health effects of exposure to pesticides. Its work should continue to be supported and advanced by the EPA.

Farmworker Justice Wine, Jazz & Award Reception

FJ’s annual Wine, Jazz and Award Reception will be held October 10 at the Beacon Hotel in downtown Washington, D.C. This year we will present an award to Lupe Martinez, CEO of UMOS, the Wisconsin-based nonprofit organization, who also is chair of the National Farmworker Alliance, and Board Member of Farmworker Justice.  Sponsorships and tickets are available on Farmworker Justice’s website event page. Please join us!

 

Statement on Trump Administration’s Proposed “Public Charge” Rule Denying Poor People the Opportunity for Immigration Status and Citizenship

Farmworker Justice (FJ) condemns the Trump Administration’s proposed changes to immigration policy regarding the “public charge” requirement that would deny visas and permanent resident status, and ultimately U.S. citizenship, to low-wage immigrant workers.  

 The proposed rule drastically expands the public benefit programs that would be considered in a public charge determination, including SNAP, Medicaid, and housing assistance. It also imposes an income test of 125% of the Federal Poverty Level ($15,175 for a single individual) under which an immigrant who earns below that income will find it much more difficult to enter the U.S. or adjust his or her status.

Farmworkers and other low-wage immigrant workers will be disproportionately harmed by this rule. Farmworkers’ wages are among the lowest of any occupation and their poverty rates are substantially higher than the national average. Instead of accessing programs that they and their families are already eligible for, farmworkers will be forced to make impossible choices about their health and well-being and will be driven further into the margins of the economy.

“The Administration would punish our farmworker families who earn low wages while working long hours in dangerous conditions to produce our food,” said Bruce Goldstein, President of Farmworker Justice, a national advocacy organization.  He added, “Farmworker Justice and our allies advocate many policy solutions that would help farmworkers improve their wage rates and reduce their poverty rates.”   

Our country thrives when we support and value the contributions of farmworkers and other immigrant communities. Farmworker Justice will work with advocates across the country to oppose this rule. We encourage everyone to share stories and, once the proposed rule is published, submit comments.

More information about public charge can be found on the Protecting Immigrant Families website. FJ will keep our networks posted on any developments.  For more information, you may contact Alexis Guild, Senior Health Policy Analyst, Farmworker Justice, (202) 372-7422, [email protected].

Farmworker Justice

www.farmworkerjustice.org

Sept. 24, 2018

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Farmworkers’ Low Wage Rates Have Risen Modestly; Now Congress May Pass a Law to Lower Them

It needs to be said:  Farmworkers’ wage rates are too low.  Farmworkers provide us with abundant, safe, healthy food at relatively low cost.  They work hard in one of the most dangerous jobs in the nation. They should be compensated for it fairly.

Yet there is a real threat that Congress will soon legislate to lower farmworkers’ wages. Some agribusiness groups are complaining that they have to raise their wage rates due to a tightening in the farm labor market.  One 2018 report by an agribusiness-supported bank characterizes pay raises for farmworkers negatively, calling them “wage inflation.” 1

A conservative columnist, however, recently defended farmworkers’ right to benefit from a competitive labor market. 2 “So how much is someone’s time worth? The short answer:  Whatever someone else is willing to pay for it. Fine. But that rule suddenly doesn’t apply to farmworkers? Why not?”

Indeed, why not? Let’s look at the numbers on how farmworkers are compensated.

Farmworkers’ annual incomes are low.  About 30% of farmworker families live below the poverty line, according to the most recent  National Agricultural Workers Survey (NAWS).3That’s almost double the poverty rate of the U.S. as a whole (15.9% in 2012).4

Average and median farmworker household incomes ranged from $20,000 to $24,999.5  By comparison, the median US household income for the same year was over $54,000 and the average household income exceeded $76,000.6

Farm work is among the lowest paid jobs.  Data on farmworkers’ wages are imperfect but still tell a troubling story of low wage rates despite evidence of modest increases in the last few years.  One measure, The USDA Farm Labor Survey (FLS), surveys farms, but not farm labor contractors (“FLCs”). A second source, the Occupational Employment Statistics survey of the Bureau of Labor Statistics (BLS) does not survey farms; instead the BLS surveys farm labor contractors and other labor intermediaries that supply farmworkers to farms.  In either case, the data indicates an undervaluing of the physically difficult and dangerous work.

The BLS reports that the median wage for the Farming, Fishing and Forestry category falls at the bottom end with other workers in the food supply chain.7 According to the BLS, crop workers during 2017 averaged $11.24 per hour and livestock farmworkers earned $12.24 per hour. Interestingly, the farm labor contractors increased their wages much faster than inflation between 2012 and 2017, but these increases bolstered a lower wage rate compared to the farms in the USDA FLS.8

Nationally, farmworkers averaged $12.47 an hour during 2017, according to the USDA Farm Labor Survey (FLS) findings on wages of nonsupervisory crop and livestock workers combined.  The average wage in 2012 was $10.80 an hour. That’s an average annual increase of about 2.6% per year, which was slightly more than inflation.9 The USDA FLS reports average wage rates by region.  The Arizona and New Mexico region was the lowest at $10.46 per hour.  California, the largest agricultural state, averaged $13.18. Outside of Hawaii ($14.37), the Washington-Oregon region topped the list at $14.12 per hour.

One complexity in analyzing farmworkers’ wages is that a substantial percentage of crop workers are paid piece-rate wages, which allows growers to pay them based on the volume of fruits or vegetables they harvest.  Many piece-rate workers say that their pay stubs show an artificially inflated number of hours worked per day so that the employer makes it appear that their piece-rate earnings have yielded the required hourly minimum wage.

While these surveys show average wage rates exceeding the legal minimum wage, many employers only pay the minimum wage.  While several states have increased their minimum wage, including Florida at $8.25 per hour; California, $11.00; Washington, $11.50; Arizona, $10.50, the federal minimum wage has been stuck at $7.25 per hour since 2009 and does not apply in some circumstances, such as at small farms.  The federal law provides a floor in several states, such as Georgia, where the minimum wage of $5.15 does not even apply to farms.

Most farmworkers in the fruit and vegetable sector are employed seasonally, not year-round, and their wages are too low to yield a reasonable annual income.  In occupations such as education and construction, many seasonal workers are paid enough to make a decent annual income and keep them coming back each year. In many rural communities it is difficult for farmworkers to find a different job during the off-season, and unemployment compensation is often unavailable. We also need to consider that housing and other costs of living in rural communities where farmworkers work often are not cheap.10

If you think raising wages to help improve farmworkers’ lives would blow up your food budget, think again.  Farmworkers’ wages are a small part of the price paid by consumers and therefore large wage increases for farmworkers would barely dent consumers’ wallets.

As National Geographic reported, “Remember that farmworkers’ share of each U.S. household’s annual grocery bill is $45. If farm worker wages go up by 47 percent, grocery bills would go up just $21.15 a year, or $1.76 a month” per household. 11 Some well-paid fruit pickers in Washington State receive about $25.00 for filling a bin that holds 800 to 1,000 pounds of apples.  That’s 2.5 cents to 3 cents per pound going to the farmworker so that he or she, if picking fast, has the opportunity to earn $18 to $20 per hour.  What do you pay for those apples: $2.50 a pound or maybe $1.25 a pound on sale?

The modest rise in farmworkers’ wages is under attack.  Certain agribusiness groups are pushing hard for Congress to pass Rep. Goodlatte’s anti-worker, anti-immigrant Agricultural Guestworker Act.  This bill would replace the current H-2A temporary foreign agricultural worker program with an H-2C visa program. One of many reasons to oppose the bill is that employers who hire foreign guestworkers would no longer be required to pay at least the prevailing wage rates.   Employers could bring in hundreds of thousands of temporary foreign workers at below- market rates, and U.S. farmworkers would be forced to accept those wage rates or be denied a job, driving down wages for all farmworkers.  We must preserve and improve wage protections.

The modest increases in farmworkers’ wages in recent years are well-deserved, but much more needs to be done to improve wages, working conditions, occupational safety, health and access to justice.  It is especially important -- for workers, employers and consumers – that Congress grant undocumented farmworkers and their families the opportunity for immigration status and citizenship. We must continue the quest to end farmworker poverty.    

1. CoBank, “Help Wanted:  Wage Inflation and Worker Scarcity, U.S. Agribusiness Experiences Hiring Headaches ,” Aug. 2018, available at https://www.cobank.com/-/media/files/ked/general/help-wanted-aug-2018.pdf .

2. Ruben Navarrette, Jr. “For many, time is money — but does that include farmworkers?,” Sept. 8, 2018, https://www.sfchronicle.com/opinion/navarrette/article/For-many-time-is-... .

3. U.S. Department of Labor, “Findings from the National Agricultural Workers Survey, 2013-14,” Research Report No. 12 (published 2016) at iii, 37-38.  The survey asked farmworkers to report their income from the year before. We therefore compare the NAWS results to data in other surveys from 2012. Available at https://www.doleta.gov/naws/pages/research/docs/NAWS_Research_Report_12.pdf

4.  U.S. Census Bureau, American Survey Briefs, Poverty 2000 to 2012 (Sept. 2013) available at https://www2.census.gov/library/publications/2013/acs/acsbr12-01.pdf

5. NAWS, at iii and 37.

6. Income and Poverty in the United States: 2017 Table A-1, Households by Total Money Income, Race, and Hispanic Origin of Householder: 1967 to 2017, Bureau of Labor Statistics (U.S. Census Bureau), Sept. 12, 2018, available at https://www.census.gov/content/census/en/library/publications/2018/demo/...

7. Bureau of Labor Statistics, Occupational Employment Statistics (OES), May 2017 National Occupational Employment and Wage Estimates, see Occupational Groups 45-0000 (Farming, Fishing and Forestry Occupations, and 35-0000 (Food Preparation and Serving Occupations) , available at https://www.bls.gov/oes/current/oes_nat.htm

8. Bureau of Labor Statistics, Occupational Employment Statistics (OES), May 2017 National Occupational Employment and Wage Estimates, see Occupational Groups 45-2092 and 45-2093, available at https://www.bls.gov/oes/current/oes_nat.htm

9. Annual Average Wage Rates - Region and United States: 2016 and 2017, in Farm Labor, Nov. 16, 2017 (National Agricultural Statistics Service, United States Department of Agriculture) at p. 25, available at  https://www.foreignlaborcert.doleta.gov/pdf/USDA_FLS_report.pdf and Annual Average Wage Rates - Region and United States: 2011 and 2012, Farm Labor, Nov. 19, 2012, at p. 24 http://usda.mannlib.cornell.edu/usda/nass/FarmLabo//2010s/2012/FarmLabo-...

Also available at Farm Labor website, http://usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo.do;jsessionid=...

10. In the wine country of Napa Valley, California, where rents are unaffordable for farmworkers, some commute by car or van 2 to 4 hours round trip daily.  Esther Mobley, “Farmworker housing may get a subsidy boost in Napa,” San Francisco Chronicle, July 11, 2017. The Economic Policy Institute Family Budget Calculator provides the annual income needed for a modest standard of living for a family of two adults and two children, including for these major agricultural production areas:  $$102,776 in Napa County, California; 86,781 in Yuma County, Arizona; $74,674 in Yakima County, Washington; $71,046 in Polk County, Florida; $89,709 in Wayne County, New York; and $76,822 in Berrien County, Michigan.

11. Tracie McMillan, “Can We Afford to Pay U.S. Farmworkers More,” National Geographic, March 31, 2016, available at https://www.nationalgeographic.com/people-and-culture/food/the-plate/201...

 

Farmworker Justice Update - 09/07/18

Farmworker Justice Update: 09/07/18

Congressional Action Post-Recess

Congress returned from August recess this week and has a limited number of legislative days left before the mid-term elections. Below are some of the key issues currently being considered:

Appropriations: Potential Impacts on H-2A Program

Congress is facing a September 30 deadline for passing FY 2019 appropriations bills; otherwise they risk a government shutdown. Given recent remarks by President Trump regarding a potential shutdown over border wall funding, it is very likely that there will be a continuing resolution (CR) for the Department of Homeland Security (DHS) appropriations bill, which covers funding for immigration enforcement. A CR is essentially an extension of current appropriations levels. Congress is also currently working on a serious of “minibuses” (packages consolidating various appropriations bills), which include labor, health, education, agriculture, defense spending and various other issues. There may ultimately be CRs on these remaining bills as well if no agreement is reached by September 30.

As a reminder, there are troubling riders related to the H-2A program in the House appropriations bills.  The House agricultural appropriations bill includes an H-2A rider that gives the USDA, rather than DOL, authority to establish and oversee a new online interagency platform for employers’ H-2A applications. This rider raises serious concerns about efforts to undermine DOL’s primary responsibility for ensuring worker protections are met and otherwise limit government oversight of the application process.  In addition, a rider was added to the House DHS appropriations bill that would expand the H-2A program to include year-round employment in agriculture. This change would not only undermine the intent of the H-2A program to address more difficult to fill temporary and seasonal jobs, but would also supplant many of the existing farmworkers who depend on these jobs for their livelihood and who are integral members of their communities.

Farm Bill

Another looming September 30 deadline for Congress is the expiration of the current Farm Bill. Senators and Representatives from both parties are working to reach a compromise as soon as possible, but various significant disagreements remain on issues including nutrition programs. One development that is particularly concerning for farmworkers is the potential inclusion of the “Pesticide Registration Improvement Extension Act of 2017,” PRIA 4, in the Farm Bill. As we have noted in previous updates, the Senate passed a standalone version of PRIA 4 which includes language guarding against rollbacks to pesticide protections for farmworkers. The Farm Bill PRIA language does not have these protections. As stated by Rep. Grijalva (TX) during a Farm Bill conference meeting, the House should instead pass the Senate version of PRIA in order to ensure farmworkers and their children are healthy and safe from pesticide exposure. Please click here to view a letter from over 100 children’s, agricultural, faith, health, industry, farmworker, and environmental organizations urging that PRIA be stripped from the Farm Bill.

Goodlatte Agricultural Guestworker Bill   

Despite the crowded Congressional calendar, the American Farm Bureau Federation is still attempting to garner support for a vote on Rep. Goodlatte’s “Ag and Legal Workforce Act,” H.R. 6417. Farmworker Justice strongly opposes Rep. Goodlatte’s bill and continues to educate members of Congress on the bill’s many anti-immigrant, anti-family and anti-worker provisions.

Kavanaugh Confirmation Hearing

September 4 marked the first day of confirmation hearings for Supreme Court nominee Brett Kavanaugh in the Senate, which continued during the week. The hearings covered a wide range of issues, and were marked by protests as well as controversy regarding the release of documents. A vote on Kavanaugh’s nomination may occur as early as next week. Senate Republicans are hoping to confirm Kavanaugh before the Supreme Court reconvenes in October. Farmworker Justice joined a broad coalition letter stating many reasons to oppose Kavanaugh’s confirmation that was organized by the Leadership Conference on Civil and Human Rights.

U.S. and Mexico Reach NAFTA Deal, Canada Now in Negotiations

The U.S. and Mexico recently announced that they have reached a deal on the modernization of the North American Free Trade Agreement (NAFTA). According to the Office of the U.S. Trade Representative, the new deal will have a labor chapter that will include an Annex on collective bargaining in Mexico and new provisions regarding goods produced by forced labor and protection for migrant workers. Farmworker Justice has found the current NAFTA’s labor side agreement protections for U.S. and Mexican farmworkers to be weak. It remains to be seen if or when Canada, the remaining party to NAFTA, will agree to the terms proposed by the U.S. and Mexico. President Trump has threatened to leave Canada out of the revised deal entirely. One of the disputes concerns trade of milk and other dairy products. The White House gave Congress the required 90-day notification for the signing of NAFTA on August 31. Mexico’s current government leaves office December 1, so this timing would allow Mexico to sign the new deal before the country’s change in leadership.

DOL Debars North Carolina H-2A Contractor

On August 28, the Department of Labor’s Wage and Hour Division (DOL WHD) announced the debarment of an H-2A farm labor contractor. Ruben V. Serna, owner of Serna Harvesting, owed $194,109 in back wages to 181 employees working at 15 different North Carolina farms. Serna charged the workers for housing and transportation, and failed to properly record hours in payroll records. FJ remains concerned that the increasing use of farm labor contractors by farm owners to hire H-2A workers leads to abuses that are not prevented if the owners are not held jointly responsible and liable for violations of workers’ rights.

Workplace Immigration Raid in Texas

A workplace raid near Paris, Texas last month led to the arrest of 160 workers. The raid resulted from a criminal investigation into the Load Trail company, which makes vehicle trailers. Many of the detained workers are Mexican nationals. This latest raid is the most recent example of workers facing family separation and possible deportation because of investigations regarding their employers.

One Year After Trump’s Rescission, DACA Remains, For Now

September 5 marked the one-year anniversary of the Trump Administration’s decision to rescind the DACA program. A series of lawsuits have been filed since then, most of which sought to preserve DACA. Injunctions from these lawsuits have resulted in the ability for current DACA holders to maintain and renew their status. On August 31, Judge Andrew Hanen ruled on a lawsuit led by the state of Texas seeking to end DACA. Judge Hanen did not order a halt to the DACA program, noting that to do so in the current context would cause more harm than the states claimed the program itself caused, while at the same time questioning the legality of the program. (Judge Hanen is the same judge who previously ruled against the Deferred Action for Parents of Americans (DAPA) program.) There is likely to be an appeal of Judge Hanen’s decision, but in the meantime USCIS is still accepting and processing DACA renewal applications. Please see NILC’s FAQs on DACA renewals for more information.

CAP Report on Immigrants in Rural America

A recent report by the Center for American Progress (CAP) analyzes the impact of immigration on rural areas. The report found that in many rural areas immigration helped to fuel population growth or at least slow population decline. The report also states that immigrants have been an indispensable part of the agricultural sector, which provides employment for 1 out of 10 rural workers. It mentions crop production and dairy as two specific sectors that are highly dependent on immigrant labor.

Civil Eats Article on Yuma Lettuce Pickers

A recent Civil Eats article describes daily life for the farmworkers who pick lettuce in and around Yuma, Arizona. The Yuma Valley grows approximately 90% of all of the U.S.’ leafy greens during the winter. The article highlights the great work done by Campesinos sin Fronteras in providing needed basic services to farmworkers. (FJ has a long history of collaborating with CSF.) As noted throughout the article, for all the technological advancements in agriculture, the working conditions and pay for those still doing the bulk of this work have not significantly improved.

Update on Farmworker Health and Safety

Oral Arguments Held on ACA Case Texas v. United States

On September 5, oral arguments were heard in Texas v. United States (formerly Texas v. Azar). The lawsuit, brought by 18 state Attorneys General, argues that the ACA should be invalidated due to Congress’ elimination of the tax penalty under the ACA’s individual mandate. The lawsuit argues that the elimination of the penalty renders others parts of the ACA, including the guaranteed coverage of pre-existing conditions, unconstitutional. The Administration did not defend the key provisions of the ACA in court. Attorneys General from 16 other states and the District of Columbia, led by California, intervened to defend the ACA and its provisions in court. In anticipation of this case, Sen. Tillis (NC) introduced the “Ensuring Coverage for Patients with Pre-Existing Conditions Act” (S. 3388) on August 23. This bill proposes to amend the Health Insurance Portability and Accountability Act (HIPAA) to prevent insurers from denying coverage due to pre-existing conditions. However, the proposed bill does not prevent insurers from charging individuals based on age and gender or for specific services to treat those pre-existing conditions. The bill has been referred to the Health, Education, Labor, and Pensions (HELP) committee.

California Proposes to Ban Short-term Health Plans

In response to the recent federal rules authorizing expanded use of short-term health plans, the California Legislature passed a bill that would prohibit the sale of short-term health plans in California. Short-term health insurance plans are not subject to ACA standards such as essential health benefits coverage. SB 910 (sponsored by State Sen. Ed Hernandez) would prohibit the sale of health insurance plans that are less than 12 months. This bill is among a handful of bills passed by the legislature in direct response to recent Administration rules. These other bills include SB 1108, which would ban the state from implementing a work requirement for Medi-Cal, and SB 1375, which would prohibit the formation of Association Health Plans. Governor Brown has until September 30 to sign the bills into law.

Heat Stress Increasing Threat to Farmworkers

A recent Mother Jones article highlights the threat to farmworkers’ lives posed by extreme heat, which will only increase with the effects of climate change. The article mentions the campaign led by Public Citizen, the United Farm Workers Foundation and Farmworker Justice to petition the Occupational Safety and Health Administration (OSHA) for a national standard to prevent heat stress and the need to address this problem before it gets even worse.

Farmworker Justice Update - 08/15/18

Farmworker Justice Update: 08/15/18

H-2A Data Published for Third Quarter of FY 2018

The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently released H-2A program data for the third quarter of FY 2018.  The data shows that there have been 193,603 positions certified so far this fiscal year. A total of 200,049 H-2A positions were certified in all of FY 2017. Thus, it is likely that the total number of positions certified in FY 2018 will be significantly higher than those certified in FY 2017, in line with the broader trend of continued growth of the H-2A program. The states of Georgia, Florida, Washington, North Carolina and California had the highest number of H-2A positions certified during the first three quarters of FY 2018, accounting for more than half of all positions certified.

Recent Cases Demonstrate Abuses in H-2A Program and Vulnerability of Workers

On August 6, the Department of Labor’s Wage and Hour Division (DOL WHD) announced a temporary restraining order and preliminary injunction against Marin J. Corp, an H-2A employer in Missouri. WHD investigators found that the employer provided unsanitary and unsafe housing and also failed to pay workers required wages. Marin J. Corp employed more than 100 H-2A workers and housed some of the workers in a former jail. Several of the workers also reported fainting from heat stroke and the fields where they were working lacked adequate access to water and restroom facilities.

Also last week, farmworkers in New York filed a lawsuit against their employer for failure to pay legally required wages and for providing unsafe and overcrowded housing.  The workers are represented by the Worker Justice Center of New York. They are seeking unpaid wages and overtime pay from 2012 through the present, plus monetary damages for the substandard housing. The employer involved participates in the H-2A program, but allegedly paid the plaintiffs, who are domestic workers, lower wages than those required under the program.

In Washington, there is ongoing activism and challenges following the death of an H-2A worker last year. Fellow workers were fired when they went on strike to demand better working conditions and their employer, Sarbanand Farms, was fined earlier this year by the DOL for not providing required breaks and meal periods. The case is detailed in a recent article in The American Prospect by David Bacon entitled “What Was the Life of this Guest Worker Worth?” The article quotes FJ President Bruce Goldstein on a variety of H-2A issues. It also mentions WAFLA’s (formerly the Washington Farm Labor Association) manipulation of wage surveys in order to drive down wages. FJ is working with Washington state advocates to protect farmworker wages.

ICE Raids Agricultural Facilities in Nebraska and Minnesota

On August 8, ICE raided various facilities in Nebraska and Minnesota, including a tomato greenhouse, a cattle feedlot and a potato processing facility. ICE agents arrested 133 workers.  Seventeen employers were also arrested based on allegations including wire fraud and money laundering. The arrests resulted from an investigation centered on a recruiter who hired workers for the various businesses involved. The recruiter allegedly forced employees to cash their paychecks at his grocery store, charging them a fee. He also allegedly withheld a portion of each paycheck, claiming he was withholding taxes but instead pocketing the money.

A particularly disturbing aspect of these recent raids is that the employees who were allegedly cheated by these abusive employers are being detained themselves. This will likely have a chilling effect on other employees who might be willing to denounce employer abuses in the future, because they will fear immigration reprisals for themselves or their colleagues. The local communities in the areas where the raids occurred have of course been severely impacted. A public school opened its doors to offer counseling for individuals affected by the raids, including many children whose family members, including parents, were detained.  A protest and vigil were held shortly after the raids. Some neighbors also voiced concerns about the economic impact that the raids will have on these small rural communities.

Legal Battle over the Status of DACA Continues Amidst Legislative Inaction

On August 3, a federal judge in D.C. vacated the government’s rescission of the DACA program. This means that the government may soon have to start accepting new DACA applications, in addition to processing renewals, which is currently required pursuant to previous orders by judges in California and New York. The D.C. judge’s order will go into effect on August 23 unless the U.S. government obtains a stay of the order by that date. In the meantime, a case challenging DACA is currently being litigated in Texas and could result in a judge ruling that DACA must be terminated and that the government must stop receiving applications. If that happens, there could be contradictory orders regarding DACA from different courts in the country. Any conflicting court decisions would need to be appealed and may ultimately end up before the Supreme Court, though the timeline for a potential Supreme Court decision still remains unclear.  This uncertainty is weighing heavily on Dreamers as they continue to plan their futures. For a full summary of ongoing litigation related to DACA, please see this chart prepared by the National Immigration Law Center (NILC).

Update on Farmworker Health and Safety

Court Orders EPA To Ban Pesticide Chlorpyrifos Within 60 Days

In a significant victory for farmworkers, public health and the environment, on August 9 the 9th Circuit Court of Appeals ordered the EPA to ban the highly toxic pesticide chlorpyrifos within 60 days. The ruling was the result of a lawsuit brought by Earthjustice and various other advocacy groups. Farmworker Justice was a plaintiff in the lawsuit.  As has been noted in previous FJ updates, the EPA had been set to ban chlorpyrifos, which has been linked to neurodevelopmental damage in children, but former EPA Administrator Scott Pruitt decided not to ban the pesticide after meeting with agrochemical industry representatives.

As stated by Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, farmworkers and their families have needlessly suffered from exposure to chlorpyrifos for far too long. Chlorpyrifos is currently used in over 50 different crops, including corn, soybeans, fruit and nut trees, and broccoli. Corteva, the agricultural division of DowDuPont, issued a statement soon after the ruling calling for an appeal to the decision. Crop Life America, another major manufacturer of the pesticide, has also called for an appeal of the ruling. The EPA has stated that it is reviewing the decision and has not yet decided whether it will appeal the ban.

NPR Highlights Rural Housing Crisis

A recent NPR report highlights the lack of adequate, affordable housing in rural areas of the U.S. The article focuses on a small Nebraska town and the lack of adequate housing for workers in a variety of industries, but does not mention farmworkers. However, the general scarcity of housing in rural areas often makes it even harder for farmworkers to find safe and affordable places to live. This reality is part of the reason why it is so important to maintain crucial protections in the H-2A program that require employers to provide housing for workers.

Farmworker Justice Update - 07/27/18

Farmworker Justice Update: 07/27/18

New Goodlatte Bill Introduced but Not Voted on As House Congressional Recess Begins

On July 18, Rep. Goodlatte (VA) introduced yet another version of his anti-worker, anti-immigrant and anti-family agricultural guestworker bill. The new bill, the “AG and Legal Workforce Act,” HR 6417, includes Rep. Goodlatte’s “H-2C” guestworker program, which would replace the current H-2A temporary agricultural guestworker visa program.  The legislation also includes mandatory E-verify.  House leadership had promised to bring standalone legislation on agricultural guestworkers to a House vote before August recess, but that did not happen. The House recess starts today and Members will not return until September.

It remains to be seen whether the bill will be taken up once the House reconvenes.  Reportedly, the bill did not have enough votes to pass, however Members state that they will be working to try to get additional support for the bill during the recess. One of the main reasons for the bill’s lack of support was the opposition to the bill expressed by some grower groups, including Western Growers and the California Farm Bureau FederationThese groups are concerned about the bill’s touch-back provision, which requires current undocumented agricultural workers to “self-deport” to their home countries before returning as guestworkers. Employers fear this provision, coupled with the implementation of mandatory E-verify, will only serve to push workers deeper into the shadows.

Farmworker Justice opposes the new Goodlatte bill, as do many immigrant rights organizations. To add your organization to a broad sign-on letter opposing the Goodlatte bill, as well as calling for a solution for Dreamers and TPS holders, please click here – the deadline for sign-on is Tuesday, July 31. Farmworker Justicewill continue to work to oppose Goodlatte’s one-sided and anti-worker proposal, while also monitoring potential regulatory changes to the H-2A program.

USDA Announces Guidelines for Including H-2A Workers in Farmworker Housing

On July 10, the U.S. Department of Agriculture (USDA) announced new internal guidance on the use of Section 514 farmworker housing. This new guidance is the result of an amendment included in the FY 2018 appropriations bill which extended use of the program to persons legally admitted to the United States and authorized to work in agriculture, expanding the definition of farm laborers eligible for the program. This change means that H-2A workers may now be eligible for this housing. Though further revisions will be made to the relevant regulations in order to conform to the statutory changes, USDA offices have been advised to include H-2A workers in the program.

The internal guidelines state that “under no circumstance” may any tenants in USDA-financed housing be displaced as a result of the change. However, the change is concerning because, as stated by Farmworker Justice President Bruce Goldstein in a Politico Agriculture update, the change is likely to encourage more employers to participate in the H-2A guest worker program and spread thin housing subsidies that can’t afford to be stretched. Any available subsidies to developfarmworker housing should be used to address the critical shortage of housing for U.S. farmworkers and their families.

House DHS FY 2019 Appropriations Bill Deeply Flawed

Newhouse H-2A Expansion Rider included in House DHS Appropriations bill

On July 25, Rep. Newhouse (WA) offered an amendment to the FY 2019 House Department of Homeland Security (DHS) appropriations bill which authorizes the expansion of H-2A to all agriculture, regardless of whether such work is seasonal. The amendment was adopted by voice vote.  The amendment is similar to one that he offered in FY 2018 which eliminated the seasonality requirement of the H-2A program. The FY 2018 Newhouse DHS amendment was ultimately not included in the final FY 2018 omnibus appropriations bill. Farmworker Justice opposes Newhouse’s year-round rider and will work to try to prevent it from being included in the final FY 2019 appropriations bill.

As detailed in a previous FJ update, Rep. Newhouse also introduced an amendment to the FY 2019 House Agriculture appropriations bill that would establish a new online platform for the processing and adjudication of H-2A petitions, to be run by the U.S. Department of Agriculture (USDA). This amendment was adopted and added to the House USDA appropriations bill. Farmworker Justice is also concerned about the potential inclusion of this amendment in the final FY 2019 appropriations bill, as the rider creates a great deal of uncertainty about what kind of oversight may be included should USDA run the application process.  USDA does not have the required expertise regarding administering guestworker programs and has historically viewed growers as their constituents instead of workers. 

Immigrant Rights Advocates Condemn FY 2019 DHS Appropriations Bill 

A coalition of immigrant rights groups, named the #DefundHate campaign, condemned the FY 2019 DHS appropriations bill that was voted on July 25. The bill includes $5 billion for construction of a border wall, as well as funding to expand detention centers and hire additional immigration officers. If included in the final FY 2019 appropriations bill, these funds would be used to further terrorize immigrant families, while lacking accountability for DHS’ fiscally irresponsible and morally reprehensible policies, including family separation. 

U.S. Government Misses Family Reunification Deadline

Pursuant to a court order, U.S. government officials had until yesterday (July 26) to reunite parents and children separated under the government's “zero-tolerance” family separation policy. Only about half of the approximately 2,500 children have been reunited with their parents. Hundreds of parents have already been deported without their children, making the prospect of future reunification uncertain. According to the ACLU, which is litigating the case, some parents were misled into agreeing to their deportation and/or relinquishing their rights to be reunited with their childrenImmigrantrefugee, and faith organizations have condemned the government’s actions and are continuing their work to provide guidance and relief to the affected families. 

FJ Opposes Nomination of Brett Kavanaugh for Supreme Court Justice

Farmworker Justice joined over 100 national organizations in a letter to Senators led by The Leadership Conference opposing the nomination of Brett Kavanaugh for the Supreme CourtKavanaugh was nominated by President Trump earlier this month. Of particular concern to farmworkers is Kavanaugh’s hostility to workers’ rights, anti-immigrant views, and undermining of environmental protections, each of which is detailed in the letter. A contentious confirmation process for Kavanaugh will likely take place in the U.S. Senate this fall. 

Milk with Dignity Campaign

 A recent Associated Press (AP) article highlights the success of the “Milk with Dignity” campaign. The agreement, led by farmworker advocate organization Migrant Justice, was signed by Ben & Jerry’s last fall. Under the agreement, Ben & Jerry’s pays a premium to farmers who agree to follow certain labor and housing standards. Approximately 70 farms employing 250 farmworkers are currently involved in the program, which is the first of its kind for the dairy industry.

Update on Farmworker Health and Safety

Farmworker Heat Stress Death in Nebraska

Farmworker Justice would like to extend its condolences to the family of Cruz Urias Beltran, a 52-year old farmworker who died earlier this month as a result of heat stroke. Urias Beltran went missing while detasseling corn in hundred-degree heat and was later found about 100 feet from the edge of a corn field. This recent tragedy once again highlights the need for protections to prevent heat stress, including the requirement for employers to provide access to drinking water, rest and shade when working in high temperatures, as well as adequate training for farmworkers to be able to identify and prevent heat stress.  

Public Citizen, FJ and Others Petition for Federal Heat Stress Standard

On July 17, Public Citizen, along with a coalition of over 200 individuals and groups including Farmworker Justice, filed a petition to the Occupational Safety and Health Administration (OSHA) asking for a federal standard to protect workers from heat stress. The danger of heat stress is particularly prevalent for farmworkers and will likely continue to grow as climate change impacts daily temperatures. The petition calls for a standard modeled after criteria set by the National Institute for Occupational Safety and Health (NIOSH).

Grain Elevator Explosion Will Not Be Investigated by OSHA Because of Small Farm Exemption

OSHA will not be investigating a recent grain elevator explosion that resulted in the death of a worker. U.S. law exempts farms with fewer than 11 non-family employees from OSHA’s purview, so the farm where the incident occurred does not qualify. The worker, Maurice Kellogg, suffered severe burns when the grain elevator exploded on May 29 and later died of his injuries. He was 55 years old and had been an agricultural worker for over 30 years. Farmworker Justice extends its condolences to his family. The exact cause of the explosion remains unknown.

FJ Developing Spanish Language Grain Safety Materials

Service providers have seen an increase over the last few years of Spanish-speaking workers on agricultural entities that produce, transport and handle grain. Currently, very few materials exist in Spanish to address grain safety protocol among grain workers. Grain handling incidents often result from improper interactions with grain processing and transporting equipment, improperly cleaned work areas, or entering untrained into grain bins and storage areas. Migratory or guest workers may be less likely to ask for the necessary training or protective equipment to complete these dangerous tasks. The changing nature of work on farms where grain is handled, including work on smaller OSHA-exempt farms, may trend towards more workers with limited English proficiency becoming involved in grain handling activities. Farmworker Justice and Indiana Legal Services have partnered to produce a series of Spanish language materials on grain handling safety. If you are interested in learning more about these materials, please contact FJ’s Health and Safety Project Coordinator, Madeline Ramey, at [email protected].

Pesticide Executive Nominated for Top USDA Post

President Trump recently nominated Scott Hutchins, a former pesticide executive for Dow Chemical, for the post of Under Secretary of Agriculture for Research, Education and Economics, which is the chief scientist position at the USDA. If approved by the Senate, Hutchins would be the third Dow Chemical executive to be assigned to a USDA post. Dow Chemical likely played a significant role in former EPA Administrator Scott Pruitt’s decision to reverse plans to ban the toxic pesticide chlorpyrifos. This latest nomination highlights the power of industrial agricultural interests in the current Administration, with negative impacts for both farmworkers and the environment. 

EPA Hearing on Use of Science in Regulations

Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, recently testified before the EPA on a proposed rule that would weaken the role of science in developing EPA policy. The proposed rule, entitled “Strengthening Transparency in Regulatory Science,” would require revealing private health data in public health scientific studies, making it less likely that the public would participate in these essential studies. Farmworker Justice opposes the rule because it would deter farmworkers from participating in scientific studies, and it would prohibit EPA from considering credible scientific evidence about the dangers farmworkers face, including exposure to pesticides. The public comment period for the rule ends on August 16, 2018.

“Skimpy Health Plans” and Farmworkers

The Center on Budget and Policy Priorities (CBPP) recently published a paper entitled “Expanding Skimpy Health Plans is the Wrong Solution for Uninsured Farmers and Farm Workers.” The paper details the negative impact association health plans and short term health plans will have on health insurance and health care access for farmworkers and farmers. At the state and federal level, policies have been proposed (and in some cases enacted) to expand access to “skimpy health plans” that are exempt from many of the ACA’s consumer protections. Farmers are often cited as the beneficiaries of these plans; in Iowa and North Carolina, expansion of skimpy plans is supported by the state Farm Bureaus. However, due to their low incomes, farmworkers may be eligible for better, more affordable coverage through the ACA’s marketplace or Medicaid. Skimpy plans, though they may seem affordable for low-income farmers and farmworkers, often have very high deductibles and limits on benefits. CBPP cites data from the 2016 American Community Survey and the 2014 National Agricultural Workers Survey. More information and analysis about association and short-term health plans can be found on the CBPP website

Cuts to Navigator Funding

On July 10, the Centers for Medicare and Medicaid Services (CMS) announced that they were cutting funding for navigators for the 2019 plan year from $36 million last year to $10 million. This represents a severe reduction in Navigator funding of nearly 90% from 2016 funding levels. CMS justified this funding reduction by stating that navigators only accounted for 1% of enrollees in the marketplace. However, as outlined in a Kaiser Family Foundation data note published July 17, the data cited by CMS likely underestimates the number of navigator-assisted enrollments. Further, the role of navigators is not limited to enrollment. Navigators also provide education to consumers, answer questions about health insurance, and support consumers post-enrollment. In farmworker communities, navigators play a crucial role to educate and enroll workers in health insurance. Awareness about the marketplaces remains low. In addition, recent changes in the ACA, specifically the elimination of the mandate penalty in 2019, create additional confusion. This reduction in funding further weakens the ACA, reversing any gains in health insurance coverage experienced by farmworker communities. 

 

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