Immigration and Labor Rights

National Farmworker Awareness Week Blog: Immigration

Immigration is a critically important issue for farmworkers. Approximately half of the farmworkers in this country, and possibly more, are undocumented. The lack of immigration status affects many aspects of farmworkers’ lives, including their ability to speak up against abusive employers, access healthcare, and fully participate in their communities.

As made clear by the current coronavirus pandemic, diseases do not discriminate based on borders or immigration status. Unfortunately, many of the U.S. government's public benefits programs do. This may make it difficult for workers to access the critical care or nutrition they need for themselves or their families. Undocumented immigrants may also be ineligible for important safety net protections such as unemployment insurance, meaning the loss of a work opportunity can be especially crippling economically. For this and other reasons, individuals are often reticent to speak up regarding safety, wage or other violations at their workplace, for fear of retaliation.

Farmworker Justice Update: 3/27/2020

 

Farmworkers Face Threat From COVID-19

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

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

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

  Cuccinelli Not Properly Installed as Head of USCIS

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

Labor Contractor Violated Visa Requirements at North Carolina Based Farm

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

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

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

 

Update on Farmworker Health and Safety

Maryland Passes Chlorpyrifos Ban

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

ACA Celebrates 10 Year Anniversary

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

 

Farmworker Awareness Week

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

We are all in this together: Farmworkers are helping us get through this crisis. Let’s thank and support them, too

National Farmworker Awareness Week (NFAW), March 25th-31st, celebrates the many contributions made by farmworkers to our communities and our very livelihoods.  This year NFAW arises at a time as the world watches in fear as the COVID-19 pandemic sweeps across the globe.

Empty grocery store shelves left behind by worried shoppers preparing for the COVID-19 pandemic have put into focus our reliance on an often-overlooked group of essential workers: farmworkers. Farmworkers form the backbone of our food supply chain, being responsible for planting, tending, harvesting and packing our fruits and vegetables; additionally, they are critical in the production of dairy and meat. Farmworkers, with the help of others in the food supply chain, help keep grocery stores stocked in the good times, and they will help re-supply the shelves while the country fights this pandemic. Yet despite their importance to the country’s food security, farmworkers are highly vulnerable to the health and economic effects of the COVID-19 emergency. It is important that we recognize the sacrifices they make and unite in supporting better work and health conditions for agricultural workers.

The average farmworker makes less than $20,000 per year, and the average income for a farmworker family is below $25,000, according to the 2016 National Agricultural Worker’s Survey. Since many states do not give them the right to paid sick leave, every day of missed work means greater financial hardship for them and their families. This lack of paid sick leave means that workers may feel the need to go to work even when they are ill, which may put them and others at risk. Housing, transportation and working conditions are another concern. Some farmworkers, particularly immigrants without families, live in group housing. The crowded conditions and poor sanitary facilities many of them experience create perfect environments for viral infections to spread. Many farmworkers also rely on shared transportation to and from work, which puts them in close quarters with others. Furthermore, a scarcity of handwashing facilities in the fields also increases the risk for the spread of disease. As if this weren’t challenging enough, language barriers and lack of action by employers could leave farmworkers without the information they need to know how to protect themselves.

Due to their living and working conditions, the toll of COVID-19 on farmworker communities could be significant. Only 47 percent of farmworkers have health insurance. Although the federal government has promised to make COVID-19 testing free of charge, treatment costs may still result in large medical bills. Living in rural areas reduces farmworkers’ access to care even further, since many have to travel long distances to rural hospitals and clinics that were already strapped for resources even before the pandemic. Furthermore, the Trump administration’s “public charge” rule created a chilling effect that makes many immigrants – who make up the majority of the agricultural workforce-- wary of using public health services. Many of the approximately one million farmworkers who lack legal work authorization are also likely to avoid seeking care if they get sick. Despite assurances by Immigration and Customs Enforcement (ICE) that they will not arrest and deport undocumented immigrants for seeking care, the agency’s aggressive immigration enforcement stance has created a climate of fear among those without legal work status.

Farmworker Justice, in collaboration with other farmworker-serving organizations, assembled a joint statement and set of policy priorities on farmworker communities and COVID-19. Those policy priorities include addressing the risks created by lack of proper sanitation in the fields and in farmworker housing; the economic hardships resulting from lack of unemployment insurance and paid sick leave; and lack of access to proper medical care.  That statement can be found here.

Today, more than ever, we should thank and support our farmworkers. It is no exaggeration to say we are all in this together. Please join Farmworker Justice this week in honoring the important contributions of farmworkers throughout the United States. More information on this celebratory week can be found on the Student Action with Farmworkers website.

Statement by Farmworker Advocates on COVID-19 and the Risks to Farmworkers

Statement on COVID-19 and the Risks to Farmworkers

The undersigned organizations represent the interests of the estimated two to three million farmworkers who are employed throughout the United States. Farmworkers feed the world through their labor, bringing fruits, vegetables and other crops to homes across the nation. Their work is critical, yet they and their work have not been properly valued. Farmworkers earn poverty wages, work under substandard conditions and face a myriad of health and other issues due to their living and employment conditions.

Given this reality and the onset of the global COVID-19 pandemic, we are gravely concerned about the health and welfare of the farmworker community, their families and the security of our entire food supply. While political leaders are swiftly taking measures in order to contain the outbreak, slow the spread of the virus and save lives, decisions are being made that have an impact on the lives and livelihoods of workers, including farmworkers.

Among these, measures have been taken to close schools, businesses and international borders to address this health crisis. We are grateful for all of those who are addressing this issue at all levels of government, not to mention those who are on the frontlines battling it. It is our hope that as these plans are being devised, farmworkers are not forgotten or left behind. To this end, we seek to raise concerns around some of the risks to the farmworker community should sweeping policies be enacted or procedures adopted without care to the unique concerns of differing communities.

We feel that it is urgent to raise some of the pressing issues here.

Health

While farmworkers are susceptible to the COVID-19, as with the general population, there are unique health considerations to account for, including:

     ● Many farmworkers often lack access to handwashing facilities with soap and water at work, making it difficult for them to routinely wash their hands as is necessary to prevent contracting or spreading of the virus.

     ● Farmworkers often move and work in groups, and travel in vehicles with large numbers of workers, making the social distancing requirements difficult, if not impossible, to comply with.

Access to Medical Care

Farmworkers often lack access to preventative medical assistance, health insurance and medical treatment:
     ● If farmworkers become ill with the COVID-19, there is concern that there are insufficient funds to provide the necessary treatment.

     ● Farmworkers may not have the financial resources to seek medical attention or insurance to cover the costs of their care.

     ● Farmworkers may not live near or have access to transportation to get them to a medical facility.

     ● If they are able to seek medical attention, farmworker community members may confront language barriers that make it difficult for them to get the care they need.

Housing

Farmworker housing conditions pose another concern and risk factor for potential transmission and spread of the COVID-19 within the farmworker community, especially for workers who are living in farmworker labor camps, shared dwellings and for those who are homeless. The close proximity of individuals in overcrowded dwellings is of deep concern:

     ● Despite the fact that there are existing housing regulations that dictate the dwelling conditions for farmworkers, particularly migratory workers, farmworkers across the nation live in homes that are overcrowded, sometimes with multiple inhabitants sleeping and living in one room.

     ● Many farmworkers share bathing, restroom and cooking facilities among multiple, unrelated workers.

     ● Some farmworkers even lack potable water, bathing facilities and soap in camp housing.

These conditions could easily give way to the spread of the COVID-19 and could potentially result in transmission to dozens and, potentially, hundreds of workers at one camp or facility. While we are concerned about the health risks to farmworkers and their families, farmworkers also play an important role in food safety and seek the education, training and protections needed to assure the safety of our food supply.

Employment

Layoffs due to business disruptions, quarantines, illness, and stay-at-home or isolation orders from city, state or federal officials could have immense financial consequences for the farmworker community:

     ● Farmworkers, unlike other professionals, are not afforded the same safety nets that would permit them to miss a day, let alone multiple weeks, of work.

     ● Most farmworkers are not entitled to unemployment benefits, and therefore, unemployment insurance is an unrealistic option for workers whose employers may be forced to shut down on a short- or long-term basis.

     ● Where state or local governments issue orders to stay at home but contain exceptions for agricultural workers to produce our food, there should be special consideration of the risks that such decisions of the government pose to farmworkers and their family members.

     ● Workers who become sick or have to care for a sick relative do not have paid leave to allow them to care for themselves or their loved ones.

     ● Even where paid leave laws are in place, there is concern that these laws will not be enforced.

     ● Workers lack guarantees that will help ensure that they maintain their jobs if they are forced to take time off for illness or to care for sick family members.

     ● Some farmworker-serving programs receive funds to run employment centers for workers. Federal funding guidelines require them to stay open and in operation, which poses a risk to the workers applying for jobs, as well as those who work at the employment centers.

     ● Farmworkers who receive Temporary Assistance for Needy Families (TANF) financial benefits for their families are required to show that they are applying for jobs, which means that many of them regularly visit employment centers in person to apply. Large numbers of workers visit these centers daily, placing the job applicants, as well as the job center employees at potential risk.

For farmworkers, missing a day of work or an entire paycheck could mean the difference between being able to feed their families or go hungry, despite the fact that their work brings food to family tables across our nation.

Education and Childcare

Like families across the nation, farmworker parents are concerned about school and childcare closures:

     ● If schools and childcare centers are closed, there is a strong possibility there will be no childcare available to support working parents. Migrant and Seasonal Head Start (MSHS) centers, a federally-funded program established in 1969 across 38 states, are being asked to close their doors despite parents’ continued need to work in the fields. Program closures leave nearly 20,000 families and 30,000 children without guaranteed access to educational early care, important nutritional needs, and healthcare needs.

     ● Few families have the financial means to pay for quality, alternative childcare, which may be limited in rural communities.

     ● Failure to have viable childcare options will require parents to miss work in order to care for their children, which will result in less income for the family.

     ● If one parent is forced to stay home from work, this will likely result in an unbalanced negative impact on farmworker women, who are likely to bear the brunt of these childcare responsibilities. 

     ● Single parents may be at a loss for childcare options altogether, either resulting in forced time away from work or making the decision to choose alternative, unregulated child care arrangements that may be inferior and dangerous.

     ● A particular concern is that parents might feel compelled to take their children to work with them in the fields, which could result in exposure to the virus, pesticides and other treacherous conditions.

Immigration and Migration

The large majority of America’s farmworkers are immigrants; they work hard to achieve the American Dream but are often living and working in difficult circumstances. More than half of farmworkers in our nation are undocumented, and many live in mixed-status families and communities. Our broken immigration system presents a threat to farmworkers’ health and safety:

     ● Undocumented or farmworkers living in mixed-status families may be afraid to seek medical attention if they become ill for fear of immigration action against them and their families.

     ● There is a risk that undocumented farmworkers or workers who are working in the US on an H-2A guestworker visa may not qualify for stimulus aid, health or other kinds of insurance that may become available to aid those who are impacted by this illness.

     ● At present time, it is unclear as to whether guest worker visas may be revoked and workers returned to their countries of origin prior to the end of their contract, not to mention whether incoming workers will be permitted to fulfill contracts that they have been recruited for given the current situation.

     ● There are concerns that restrictions might be placed on ground travel, either through the potential for a state or national quarantine, which would make it impossible and, potentially even unlawful, for farmworkers to migrate to follow the agricultural stream for work.

Violence and Exploitation

Farmworkers already face high rates of violence and exploitation at work, including gender-based violence and labor exploitation:

     ● The existing circumstances related to the pandemic are ripe for both violence and exploitation against farmworkers due to the increased levels of stress, anxiety and feelings of helplessness, coupled with the overall vulnerability of this population.

     ● Domestic violence, sexual violence and human trafficking are all real threats against farmworkers during this time of instability.

     ● Labor recruiters or contractors might feel more empowered to cheat workers out of their wages or commit other violations against them because they know that workers are desperate to keep their jobs, particularly when so much financial instability exists.

While the list of concerns related to the COVID-19 and its potential impact on the farmworker community is lengthy, there are also solutions that exist to limit the impact that this virus could have on farmworkers, their families, consumers and other community members. Even though farmworkers have been denied many of the basic protections afforded to other workers and workforces in the past,1 political leaders must take into account the ongoing and emerging needs of the farmworker community. These priorities must be considered as protocols, policies and programs are being developed to create an all-community plan to address, curb and end the COVID-19 pandemic.

Sincerely,

Justice for Migrant Women

Association of Farmworker Opportunity Programs

Farmworker Justice

League of United Latin American Citizens (LULAC)

MAFO, A National Partnership of Farmworker & Rural Organizations

Migrant Legal Action Program

National Farmworker Ministry

National Migrant & Seasonal Head Start Association

PCUN, Oregon’s Farmworker Union

United Farm Workers Foundation

UMOS


1 The exclusion of farmworkers from labor protections is a shameful, racist legacy of the Jim Crow era. Because of a compromise made by President Franklin D. Roosevelt in 1938 to get Southern segregationist legislators to support his New Deal, agricultural and domestic workers – who at the time were primarily black workers – were intentionally carved out of federal labor laws. Today, decades later, the only thing that has changed is the demography of our nation’s farmworkers. They are now primarily Hispanic (83%), but, like the primarily black farmwokers of the 1930s, they are still marginalized people of color.
 

 

 

Farmworker Justice Statement: Our Dedication to Helping Farmworker Families Confront the Challenges of COVID-19

         Farmworker Justice is collaborating with farmworker-serving organizations and many other organizations to help farmworker families confront the very serious challenges caused by the COVID-19 pandemic.  We are gathering information and devising strategies to help farmworkers and their organizations advance solutions for the health and well-being of farmworkers, their children and their communities.

            FJ has a long history of working on health, occupational safety, labor and immigration issues using a diverse set of tools.  These tools include collecting, analyzing and disseminating information for farmworker-serving organizations and farmworkers themselves; policy and legal analysis and advocacy; training and technical assistance; corporate social responsibility initiatives; public education; and coalition-building.  All these tools and more are needed now.

            There are about 2.5 million farmworkers in the U.S., not including their spouses and children.  Farmworkers are not alone in the threats they face from the COVID-19, but they are among the most vulnerable.  Farmworkers often are in unique circumstances that cause them to be especially vulnerable during public health crises. 

         Farm work ranks among the most dangerous jobs in terms of deaths and injuries, while also remaining among the lowest-paid occupations in the nation.  Fringe benefits such as paid sick leave or health insurance are rarely offered.  Federal and state labor laws often discriminatorily exclude agricultural workers from basic protections.  Farmworkers often live in crowded, unsafe housing in isolated geographic areas.  And a majority of farmworkers are undocumented immigrants. All of these factors exacerbate the potential impact of public health crises on the farmworker community.

            The current COVID-19 crisis highlights the inadequacies and the inextricable links between our broken health care and immigration systems.  In addition, the nature of farm work means that telecommuting is not an option and there are serious limits to social distancing and other mitigation measures.     

         The many concerns farmworker families face regarding COVID-19 include the following:

•          Lost work and lost wages and the serious consequences that follow

•          Lack of unemployment compensation

•          Lack of health insurance/ inability to become insured

•          Lack of access to health care

•          Lack of childcare

•          Lack of adequate education and nutrition programs when schools close

•          Unsanitary, crowded housing and the risk of losing housing due to job loss

•          Lack of paid sick leave

•          Impacts of the broken immigration system

           •         lack of immigration status for a majority of farmworkers

           •         threats of immigration enforcement

           •         uncertainty regarding the H-2A agricultural guestworker program

           •         closing of U.S. consulates’ visa processing

•          Lack of access to accurate, timely, information in appropriate languages

•         Stress and anxiety and lack of mental health resources

         Farmworker Justice will continue its efforts to help farmworkers confront these and many other challenges.  As this crisis evolves, we will also provide updated information and resources.  

         Our staff is following CDC guidelines to keep themselves, families and co-workers safe; we are all telecommuting.  We are thinking of all the farmworker families we serve, our many collaborators and our supporters, at this difficult time. 

         Thank you for your support.

Farmworker Justice Update: 2/28/2020

 

Public Charge Rule is Now in Effect 

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

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

Press Conference in Support of FWMA

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

The National Labor Relations Board Releases Final Joint Employer Rule   

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

“PRO Act” Passes the House

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

Florida Considers Bill Requiring E-Verify

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

President Trump Releases Proposed 2021 Budget

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

 

Update on Farmworker Health and Safety

State-Level Efforts to Ban Chlorpyrifos

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

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

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

UC Davis Study on Farmworker and Employer Responses to Wildfire Smoke

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

Farmworker Justice Update: 1/29/2020

 

DOL Releases New Joint Employer Rule  

On January 12, the Department of Labor (DOL) released a new final rule in the form of an interpretative regulation on joint employer liability under the Fair Labor Standards Act (FLSA). The new interpretation creates a four part test to assess whether a business should be considered a joint employer with another business. The purpose of the regulation is to narrow the circumstances under which joint employer status will be found. One of the consequences of this interpretation, if implemented, would be that where a larger business, such as a farming operation, uses a labor contractor to supervise workers, only the labor contractor would be found liable for violating child labor, minimum wage or overtime rules. This definition is a marked change from prior interpretations by the courts and by the DOL itself. 

Farmworker Justice filed extensive comments on behalf of itself and other organizations opposing the proposed changes. We expect that most federal courts would not follow this interpretation when workers sue to enforce their rights and seek joint employer liability.  However, the DOL will follow it in conducting its investigations and litigation under the FLSA, which will encourage some businesses to use abusive labor contractors. These changes do not affect a previous, and appropriate, joint employer interpretation issued by the DOL under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the principal federal employment law for farmworkers. 

Top USDA Civil Rights Official Leaves Agency

Effective January 31, the U.S. Department of Agriculture (USDA) deputy assistant secretary for civil rights, Naomi Earp, will leave the agency. Earp has only been at the job for a year. Earp faced criticism during a House hearing where a Representative accused her of mismanaging the office intended to be a champion for the underserved. Of the 300 civil rights complaints filed by employees in fiscal year 2019, only 2 resulted in a finding of wrongdoing. Additionally, Earp had made several controversial comments relating to alleged sexual harassment within USDA. Neither the agency nor President Trump has announced a successor yet.  

New Trade Deals Move Forward

China

On January 15, Trump signed phase one of a new trade deal with China. Among the new trade provisions is an agreement that China will purchase $32 billion in agricultural products over the next two years. The new deal has received criticism as it leaves two thirds of the tariffs on Chinese goods coming into the United States in place, which some describe as a hidden tax. Similarly, the phase 1 deal did not reduce the tariffs on U.S. agricultural goods going into China, which President Trump claims will come off in the Phase 2 deal. There is also the caveat that China will buy the goods “based on market conditions.” This worries some farmers who do not believe the market will change much under the new deal. USDA Secretary Sonny Perdue stated that the new China purchases would alleviate farmer’s current need for aid from the U.S. government to stay afloat.

USMCA

On January 16, the Senate passed the U.S.-Mexico-Canada Agreement (USMCA), which will replace the previous North American Free Trade Agreement (NAFTA). Some of the agreement’s new provisions expand the dairy market in Canada, and others demand that Mexico expand labor protections for workers, including migrants and women. Opponents of the bill, including some labor and environmental groups, think that the new deal does not go far enough in protecting workers and the environment. The bill passed through Congress with bipartisan support, with a vote of 89-10 in the Senate and 385-41 in the House. Trump has not signed the trade deal as of the writing of this update.

Temporary Restraining Order Placed on Part of New York Farmworker Rights Law

On December 30, 2019, a coalition of New York dairy and vegetable farmers filed a lawsuit against implementation of the “Farmworkers Fair Labor Practices Act,” a new state agricultural labor law that took effect on January 1. The new law gives New York farmworkers the right to unionize, be paid overtime pay (after 60 hours in a week) and take at least one day off per week for the first time in the state’s history. Gov. Cuomo signed the historic legislation in July 2019. The groups behind the lawsuit are not challenging the provisions that allow for overtime and at least one day off per week. Rather, they want clarification on the collective bargaining piece of the legislation, which they claim runs counter to federal law. The judge temporarily blocked one aspect of the collective bargaining law. As a result, for the time being, the right to unionize will not apply to supervisory personnel. There will be additional court proceedings in February.

New Colorado Overtime Rules Exclude Farmworkers

On January 22, the Colorado Department of Labor and Employment released new overtime rules extending overtime pay to additional occupations. However, little will change for farmworkers as agricultural employees are still exempt under both federal law and the new state rules. One positive change is that farmworkers now have a required 10 minute break for every 4 hours worked. The agency said it chose not to expand overtime to farmworkers because they are exempt under federal law.

 

Update on Farmworker Health and Safety

Public Charge Litigation Update

On January 27, the U.S. Supreme Court overturned a nationwide injunction by the 2nd Circuit Court of Appeals that had prevented the Trump administration from implementing its public charge rule. The Supreme Court’s 5-4 ruling means the rule could now go into effect although it remains unclear when the Administration will begin implementing it. Prior to the Supreme Court ruling, on January 8, the 2nd Circuit Court of Appeals in New York had denied the Administration's motion to stay (or temporarily lift) the New York District Court's nationwide injunction. FJ will continue to provide information as this process unfolds. The Protecting Immigrant Families (PIF) campaign has resources and messaging for community members around public charge. 

Under the Immigration and Nationality Act, the government may deny an application for immigration status to a person who “is likely at any time to become a public charge.” The new rule drastically changes the factors used to determine whether a person is “likely” to become a public charge in the future. It also changes the definition of “public charge.” The consequences are that many immigrants who contribute to our economy and support their families will be deemed unfairly to be a “public charge” and denied immigration status.  It is important, however, to understand what is in the rule and what is NOT in the rule, as described in our fact sheet.

ACA Open Enrollment Period for 2020 Ends

Open enrollment for healthcare.gov, the federal health insurance marketplace under the Affordable Care Act (ACA), ended in December 2019. According to the Centers for Medicare and Medicaid Services (CMS), approximately 8.3 million individuals selected or were automatically re-enrolled in health insurance plans. This total is slightly less than last year; however, there were more new enrollments than last year, despite cuts to outreach and in-person assistance/navigator programs and the repeal of the individual mandate. Data is not yet available for the state-based marketplaces (including California, Colorado, Connecticut, Massachusetts, New York, and Washington, among others). Final numbers should be available in February. 

Fifth Circuit Rules Against the ACA

On December 18, the Fifth Circuit ruled part of the Affordable Care Act unconstitutional and remanded the rest to the district court. The individual mandate was ruled unconstitutional and will no longer apply unless the Supreme Court overturns the ruling. However, the Fifth Circuit did not rule on whether the rest of the ACA withstands a constitutional test. Pro-ACA organizations consisting of the House of Representatives and a coalition of several states filed an appeal with the Supreme Court for an expedited hearing, but that request was denied on January 21. That decision means that the appeal will be heard in October 2020 at the earliest, pushing the final ruling past the upcoming November 2020 election.

States Debating Chlorpyrifos Ban

On January 20, a bill that would ban most uses of chlorpyrifos was introduced in the Washington legislature. Mint, onion and sweet corn growers would still be able to use the chemical under the bill. Other farmers could apply for an exemption, too, but they would have to alert neighbors prior to spraying and warn that exposure to chlorpyrifos could harm young children and fetuses. Sen. Christine Rolfes introduced the bill, SB 6518. The ban would begin January 1, 2021 for products with chlorpyrifos as the active ingredient. However, users have until December 31, 2025 to ask permission from the state to use chlorpyrifos with restrictions.

In Oregon, a pesticide working group met on January 23. During the meeting, a proposed bill was discussed for banning chlorpyrifos. The Oregon legislature has attempted to ban the chlorpyrifos in the past to no avail. The bill would work to ban the sale of chlorpyrifos over the next two years. PCUN and Oregon AFL-CIO are leading this bill. HB 4109 already has several sponsors and cosponsors, but has not been formally introduced.

The Maryland legislature will also consider a ban. The proposal has been introduced in past legislative sessions, and groups are hopeful that this year the legislature will take action. S.B. 300 and H.B. 229 will be heard in committee in February. Farmworker Justice has been assisting activists in Maryland and other states in this effort.  Farmworker Justice is also a plaintiff in federal litigation against the EPA for its refusal to ban chlorpyrifos.

Farmworker Justice Statement on the Passage in the House of Representatives of the Farm Workforce Modernization Act, HR 5038

 

Farmworker Justice thanks the Members of the House of Representatives who voted in favor of the Farm Workforce Modernization Act of 2019, HR 5038, which passed the House today.       

The Farm Workforce Modernization Act (FWMA) resulted from lengthy, complex negotiations led by Rep. Lofgren (D-CA), Chair of the Subcommittee on Immigration and Citizenship, and Rep. Newhouse (R-WA), a farmer and former Director of Washington State’s Department of Agriculture, and additional colleagues.  To help reach agreement, Members of Congress involved farmworker advocates, including the United Farm Workers and Farmworker Justice, as well as agricultural employer trade associations and other stakeholders. 

“Achieving compromise on complex, polarizing labor-management and immigration issues was possible because of the wide recognition that farmworkers are essential to our nation's food and agriculture systems,” said Bruce Goldstein, President of Farmworker Justice.  “Our nation’s immigration system is broken and results in great unfairness, as over one-half of the 2.4 million people who labor on our farms and ranches to feed us are undocumented immigrants.  This bill, despite shortcomings that are inevitable in any compromise, is a responsible effort to fix our broken immigration system and enable many farmworkers and their families to gain a greater measure of justice.”       

The large majority of the nation’s 2.4 million farmworkers are immigrants, and a majority lack authorized immigration status. Undocumented farmworkers and their family members live in fear of arrest, deportation and the breakup of their families. Many farmworkers are reluctant to challenge illegal or unfair treatment in their workplaces and their communities.  At times, they cannot go to work or their children’s school functions due to the presence of immigration enforcement agents.  “The country’s farms and our food system depend on immigrants, both documented and undocumented, and they deserve a greater measure of justice,” Goldstein added.

 The Farm Workforce Modernization Act bill provides a path to lawful permanent residency for undocumented farmworkers and their family members.  Removing the threat of immigration enforcement would help farmworker families and farming businesses. “With legal status, farmworkers would be better able to improve their wages and working conditions and seek enforcement when their limited labor rights are violated,” said Goldstein. These improvements would result in a more stable farm labor force and greater food safety and security to the benefit of employers, workers, and consumers.  The earned legalization program’s requirements are more rigorous, lengthy and expensive than we preferred, but are acceptable in the effort to reach a realistic, bipartisan compromise,  

The bill also would revise the existing H-2A agricultural guestworker program to address farmworker and employer concerns with the program. 

Farmworker advocates have pressed for reforms to reduce widespread abuses under this flawed program, while agricultural employers have lobbied heavily to remove most of its modest labor protections, claiming that the program is unduly expensive and bureaucratic.  “The bill’s lengthy provisions on the H-2A guestworker program include important new protections for U.S. and foreign farmworkers, as well as changes to address agricultural employers’ demands that Farmworker Justice has historically opposed,” said Goldstein. Compromise was necessary to achieve legislation that could become law and address serious harms imposed on farmworker families by our broken immigration system. 

Farmworker Justice supports the Farm Workforce Modernization Act of 2019 because it would help hundreds of thousands of farmworkers and their family members improve their lives.  Our fact sheet on the bill is available on our website’s Resource Center under Legislative Proposals/116th Congress.

Farm Workforce Modernization Act Heard in House Judiciary Committee

 

On November 21, 2019, the House Judiciary Committee passed the “Farm Workforce Modernization Act of 2019” (FWMA), H.R. 5038, out of the Committee by a roll call vote of 18-12, with all Democrats present voting for the bill.  The vote followed debate on the bill that took place on November 20.

The FWMA is a bipartisan compromise reached as a result of months-long negotiations between worker representatives, including the UFW, Farmworker Justice and UFW Foundation, and agricultural employers. The bill currently has 26 Democratic co-sponsors and 23 Republican co-sponsors. Farmworker Justice supports the bill. You can read a summary of the bill’s provisions here.

The mark-up of the bill in the Judiciary Committee lasted approximately four hours. During the mark-up, two Democratic amendments were proposed to the bill. The first, which was adopted, was an amendment by Rep. Jackson-Lee (D-TX) allowing Temporary Protected Status (TPS) and Deferred Enforcement Departure (DED) status holders to apply for Certified Agricultural Worker (CAW) status. Rep. Jayapal (D-WA) introduced a second amendment, which would ensure the eligibility of CAW individuals and their dependent family members for the ACA's plans, tax credits and cost-sharing reductions; however, in recognition that further education is needed in order to reach a consensus on this issue, Rep. Jayapal withdrew the amendment prior to a vote. Rep. Jayapal also read aloud several stories that Washington farmworkers shared with her during a visit to her office in support of the bill. Rep. Correa also welcomed the UFW and UFW Foundation farmworkers who traveled to DC to support the bill and were in the audience during the proceedings.

Republican members also offered amendments, all of which were voted down by large margins, with all Democratic committee members opposing the amendments. Rep. Lofgren and other Democratic members, such as Reps. Nadler and Raskin offered strong arguments against many of these amendments. The amendments focused on anti-worker and anti-immigrant issues such as lowering wages, undermining the legalization program, limiting workers’ access to legal remedies, and reducing other key protections for workers. Ranking Member Collins (R-GA) offered two amendments attacking key protections obtained for H-2A workers in the legislation: 1) the right to coverage under the principal federal employment law protecting farmworkers, the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and 2) creating a “right to cure” for employers after a complaint is filed.

Rep. Lesko (R-AZ), Rep. Chabot (R-OH), and Rep. Buck (R-CO) also offered amendments that would have limited the ability of farmworkers to participate in the legalization program and path to lawful permanent residency. In addition, Rep. Steube (R-FL) introduced a variety of amendments to provide additional anti-worker reforms to the H-2A program in the bill, such as lowering farmworker wages and having USDA administer the H-2A program rather than DOL. The compromise already included significant wage concessions from farmworkers.

Farmworker Justice appreciates the Judiciary Committee’s vote in favor of the Farm Workforce Modernization Act of 2019 because the bill, if passed, would enable hundreds of thousands of farmworker families to improve their living and working conditions and their participation in our economy and democracy.

Farmworker Justice Update: 12/04/19

 

Immigration Policy: House Judiciary Committee Approves Farm Workforce Modernization Act  

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

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

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

USDA Releases Farm Labor Survey

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

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

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

Farm Must Pay for Failing to Provide Safe Housing and Transportation

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

Appropriations Deadline Pushed to December 20th

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

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

 

Update on Farmworker Health and Safety

Children Working in Agriculture Unprepared for Risks

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

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