Immigration and Labor Rights

Farmworker Justice Update - 03/15/19

Farmworker Justice Update: 03/15/19

New Bill Protecting DACA, TPS and DED Recipients Introduced in Congress

On March 12, Congresswomen Lucille Roybal-Allard (CA), Nydia Velázquez (NY), and Yvette Clarke (NY) introduced the “Dream and Promise Act of 2019,” H.R. 6. The bill provides a pathway to citizenship for “Dreamers” - DACA (Deferred Action for Childhood Arrivals) recipients and DACA-eligible individuals. Dreamers would be provided conditional permanent resident status and would need to fulfill an education, employment or military track to adjust to permanent resident status. The bill also allows TPS (Temporary Protected Status) and DED (Deferred Enforced Departure) recipients the ability to adjust their status and gain permanent lawful status. The bill is a “clean” bill, meaning it does not include any funding for immigration enforcement or address any other immigration issues other than these specific categories of immigration protections.

Currently, over a million people are in danger of losing existing protections due to the Administration’s attempts to terminate each of these programs. Liberian DED recipients are currently facing the most imminent risk, as their protection is set to expire at the end of this month (March 31). With regards to DACA, the government is currently accepting renewal applications pursuant to ongoing litigation, but is not accepting any new applications for the program. United We Dream has resources available for those who wish to renew their DACA status. For TPS recipients, their status depends on their specific country of origin. TPS protections for Sudan, Nicaragua, Haiti, El Salvador, Honduras and Nepal, all of which had been set to be terminated by the Administration, are being maintained for the time being pursuant to ongoing lawsuits. A few other countries also have a TPS designation, but unlike the ones mentioned above, have not been terminated by the Administration. There are also separate efforts underway to create a new TPS designation for Venezuela.

Senate Rejects Trump’s Border Emergency Declaration

 Yesterday (March 14), the U.S. Senate voted 59-41 to overturn President Trump’s declaration of a national emergency at the southwestern border. The resolution is the same as the measure passed earlier by the House. This is the first time in history that Congress has voted to block a presidential emergency declaration. President Trump has promised to veto the measure.

White House Releases Proposed FY 2020 Budget

Earlier this week, the White House released its proposed FY 2020 budget. The proposal would significantly cut funding to most government agencies while also increasing the country’s defense spending, as well as allocating over $8 billion for a border wall. It would cut funding for major government programs including Medicare, Medicaid, Social Security, SNAP (the Supplemental Nutrition Assistance Program) and TANF (Temporary Assistance for Needy Families). It also includes a 31% cut in funding to the EPA (Environmental Protection Agency), 10% cut in funding to the DOL (Department of Labor) and 12% cut to USDA (Department of Agriculture). Some of the funds cut from the USDA include a reduction in funding for rural housing programs, for which farmworkers may be eligible. The proposed budget is unlikely to become law because Congress’ actual FY 2020 appropriations bills will probably differ significantly from the President’s proposal, as they have the past two fiscal years.

Update on Farmworker Health and Safety

Andrew Wheeler Confirmed as EPA Administrator

Last month, the Senate confirmed Andrew Wheeler, a former coal lobbyist, to be the Administrator of the EPA (Environmental Protection Agency). Wheeler had been serving as Acting Administrator since the previous Administrator, Scott Pruitt, stepped down last year amidst various corruption scandals. Throughout this career, Wheeler has advocated for a deregulatory agenda.

PRIA Signed into Law, Safeguarding Worker Protections  

On March 8, President Trump signed into law the “Pesticide Registration Improvement Extension Act” (PRIA), S. 483, which passed unanimously in both the House and Senate. The legislation provides much-needed funding for the EPA’s pesticide evaluation and registration process. The final bill contains language safeguarding key provisions of the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rules, which had previously been targeted by the EPA for potential roll-backs. Pursuant to the law, the EPA is now prohibited from making revisions to the WPS and CPA until at least October 2021 (other than limited revisions to the WPS’ application exclusion zone). As stated by Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, “we are pleased that PRIA has passed and that it underscores the importance of worker safety as a vital part of pesticide registration. We are especially grateful for the efforts of Senators Udall, Stabenow and Roberts to preserve worker protections from attempts by the EPA to eliminate them.”

Proposed Changes to the WPS’ Application Exclusion Zone (AEZ)

Just five days after the enactment of PRIA, the EPA sent proposed revisions to the Application Exclusion Zone (AEZ) requirements in the WPS to the Office of Management and Budget (OMB) for regulatory review. The WPS defines the AEZ as the area surrounding the pesticide application equipment that must be free of all persons other than appropriately trained and equipped handlers during pesticide applications. This provision in the rule is intended to provide a measure of protection to workers and bystanders from off-target drift during a pesticide application. If an applicator sees an unprotected person near the application equipment, the applicator must suspend the application until that person leaves the area. Following the OMB review and a subsequent review by the USDA, the proposed changes will be made public and open for a comment period of at least 90 days. Farmworker Justice plans to draft comments to the proposal, along with environmental and worker advocates.

State-Level Proposals to Ban Chlorpyrifos

Various states are currently undertaking efforts to ban the highly toxic pesticide chlorpyrifos. As noted in previous FJ updates, the EPA was set to ban this pesticide at the federal level, but reversed course in early 2017. FJ is currently involved in litigation regarding this decision. As the litigation continues, there are various efforts underway to ban the use of chlorpyrifos at the state level. The Maryland legislature is currently considering a bill to ban chlorpyrifos, and has already held various hearings on the issue. The state of Connecticut is also considering a bill banning chlorpyrifos, with a hearing set to take place on Monday, March 18. The Oregon state legislature is similarly considering a bill banning chlorpyrifos, with an upcoming hearing on Wednesday, March 27. Please sign here to support the Oregon bill.

Farmworkers, Climate Change and Heat Stress

A recent Civil Eats article details the increasing risks from climate change faced by farmworkers, including dehydration and heat stroke. The federal government has no regulations in place to protect workers against heat stress. As noted in previous FJ updates, Public Citizen, along with various advocacy organizations including FJ, petitioned OSHA (the Occupational Safety and Health Administration) last year to request federal heat stress regulations. We have not yet received a response to the petition.

Farmworker Justice Update: 02/21/19

Farmworker Justice Update: 02/21/19

Fairness for Farm Workers Act Would Grant Farmworkers Overtime Pay

On February 7, Senator Harris (CA) and Representative Grijalva (AZ) introduced the “Fairness for Farm Workers Act of 2019,” S. 385/H.R. 1080. The bill would address the discriminatory treatment of farmworkers under the 1938 Fair Labor Standards Act (FLSA) by extending overtime protections to farmworkers and removing many of the remaining minimum wage exclusions still applicable to agricultural work. Under the legislation, people working in agriculture would eventually be entitled to time-and-a-half pay for working more than 40 hours in a week. Farmworker Justice strongly supports this legislation. For more information on the Fairness for Farm Workers Act, please see our fact sheet.

Agriculture and Immigration Policy Debate Heating Up

The Los Angeles Times recently published a letter to the editor by FJ’s president Bruce Goldstein, entitled “Immigrant farm laborers deserve more than just 'guest worker' protections.”  The letter was in response to an op-ed by the president of the American Farm Bureau Federation, Zippy Duvall, arguing for changes to the H-2A guestworker program.

Washington State Bill Could Eventually Fund H-2A Program Oversight with Employer Fees  

State lawmakers in Washington recently introduced SB 5438, a bill that would create a new office to monitor the H-2A program within the state’s Employment Security Department (ESD). The ESD has stated that its funding is insufficient to adequately oversee the H-2A program in the state, which has grown more than 1,000 percent over the past decade. Farmworker advocates, including Farmworker Justice, have contended that more resources are needed to carry out prevailing wage surveys and other obligations. The original bill established fees from farmers for each H-2A application, as well as a per-employee fee. However, last week the state’s Senate Committee on Labor and Commerce approved a revised version of the bill that would delay the implementation of employer fees until 2022. In the meantime, the office would be funded by additional appropriations. The revised bill also calls for a cost analysis in 2021 to determine whether fees are needed. Employer groups claim the delay in fee implementation will give them more time to lobby the federal Congress for funding. The bill is still being considered in the state Senate and is scheduled for a public hearing in the Committee on Ways and Means on February 25.

Trump Signs Federal Appropriations Bill and Declares National Emergency on Southern Border

On February 15, President Trump signed an appropriations bill providing funding for the remainder of FY 2019 (through September 30, 2019) for several government departments. The bill includes $1.375 billion for the construction of “barriers” along the southern border as well as funding for upgrades to ports of entry. It also includes a modest increase of $6 million for subsidies to build farm labor housing, among many other provisions. On the same day, President Trump also issued a presidential proclamation declaring a national emergency at the southern border, in an attempt to secure billions more in funding for wall construction from other sources. Multiple lawsuits challenging the emergency declaration have already been filed.  Congress is reportedly planning to introduce a resolution against the declaration tomorrow (February 22).

William Barr Confirmed as Attorney General

On February 14, William Barr was confirmed by the U.S. Senate to be the next U.S. Attorney General, by a vote of 54-45. He was formally sworn in later that day. Barr previously served as Attorney General under President George H.W. Bush. Barr has long been a proponent of broad Presidential authority and authored a memo before his confirmation questioning the ongoing Mueller investigation.

“Sensitive Locations” Legislation Introduced in House

On February 6, Representative Espaillat (NY) introduced the “Protecting Sensitive Locations Act of 2019,” H.R. 1011. The bill would codify and expand existing agency guidance limiting immigration enforcement actions at “sensitive locations” such as hospitals, schools and places of worship. The bill prohibits enforcement actions - including arrests, interviews, searches and surveillance - at these locations, except in extenuating circumstances such as a national security threat. The bill specifies that any medical treatment or health care facility, including community health centers, is considered a sensitive location. Early childhood education programs are also explicitly listed as sensitive locations. Additionally, the bill expands the types of sensitive locations to include courthouses, congressional offices and public assistance offices, among others.  Farmworker Justice supports this bill.

Update on Farmworker Health and Safety

Pesticide Safety:  PRIA Unanimously Passed in Senate

On February 14, the Senate unanimously passed the reauthorization of the Pesticide Registration Improvement Act (PRIA), legislation that provides much-needed funding for the Environmental Protection Agency (EPA)’s pesticide evaluation and registration process. The bill is supported by a broad coalition of stakeholders including industry representatives and environmental organizations. Farmworker Justice is a part of the PRIA coalition, and supports the bill’s funding for regulatory activities related to worker protection, including the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators (CPA) rule. The PRIA bill passed by the Senate last week is identical to the one previously passed in June 2018, which contains language safeguarding key provisions of the WPS and CPA rule. Both regulations had been targeted by the EPA for potential roll-backs, but the EPA recently withdrew these efforts. The House is scheduled to vote on PRIA early next week.  

Federal Chlorpyrifos Case to be Re-Heard by Larger Panel of Judges

Earlier this month, the 9th Circuit Court of Appeals granted the Environmental Protection Agency (EPA)’s request for another hearing in a case regarding chlorpyrifos, a highly toxic pesticide. The lawsuit, in which Farmworker Justice is a plaintiff (and which has been mentioned in previous FJ updates), asks that EPA ban the pesticide, in accordance with its own scientific findings. The agency had been set to ban the pesticide before reversing its decision in 2017. The case will now be re-heard and decided by a panel of 11 judges. The original panel of 3 judges that previously heard the case ruled that the EPA should ban the pesticide, which led to the EPA’s request for another hearing. In the meantime, use of the pesticide can continue, posing a significant health risk for farmworker communities.

Maryland Considering Legislation to Ban Chlorpyrifos

As litigation and advocacy regarding chlorpyrifos continues at the federal level, a bill banning the chemical has been introduced in the Maryland legislature. Chlorpyrifos is already banned for use in residential settings. Farmworkers also deserve to be protected from this highly toxic chemical. As stated in a recent editorial in the Baltimore Sun, doing nothing to ban chlorpyrifos will mean continued harm to children and others. An op-ed in the Delmarva Daily Times, co-written by Migrant Clinicians Network and Farmworker Justice, highlights the unique harm the pesticide poses to farmworkers and rural residents. Maryland lawmakers should side with human health and safety by supporting HB 275 / SB 270.

Article Highlights Mental Health Challenges for Farmworkers

A recent Huffington Post article discusses the mental health challenges faced by farmworkers, which are often exacerbated by their living and working conditions, as well as immigration status and lack of access to health care. As stated by FJ’s director of occupational and environmental health, Virginia Ruiz, mental health issues cannot be divorced from policy, particularly immigration and health care policy.

Farmworker Justice Resources on Access to Health for Farmworkers

Farmworker Justice recently released “The Unidos Initiative: Mobilizing to Eliminate Barriers to Health and Healthcare in Farmworker Communities.” This report summarizes the processes, findings and impact of the skin cancer prevention component of the Unidos initiative; a community mobilization program directed by FJ in AZ and CA. The report also identifies program gaps and discusses recommendations for building on the successes of this unique project. Additionally, FJ’s report with Harvard’s Center for Health Law and Policy Innovation, “The Promise of Telehealth,” discusses the current state of telehealth in the United States, opportunities that telehealth provides for improving access to health care for rural residents, and the unique position that community health workers occupy as potential facilitators of telehealth technologies in rural farmworker communities. Together, these reports provide a unique perspective on the effectiveness of community mobilization-based strategies, community health workers, and telehealth as means of providing accessible specialty care to farmworkers.

Farmworker Justice Update - 02/06/19

Farmworker Justice Update: 02/06/19

Legislation Regarding Farmworkers Introduced in 116th Congress

Agricultural Worker Program Act Would Provide Path to Citizenship for Farmworkers

On January 17, Senator Feinstein and Congresswoman Lofgren (both of CA) introduced the “Agricultural Worker Program Act of 2019,” (S. 175/H.R. 641). The bill is critically important for our nation’s food and agriculture system. Under the Trump administration, farmworker communities across the country are living and working in fear of immigration enforcement and deportation. If enacted, this legislation would alleviate that fear by providing farmworkers and their families an opportunity to earn legal immigration status. The legislation would provide a path to temporary legal status followed by lawful permanent residency for eligible farmworkers who meet agricultural work requirements. Immediate family members would also be eligible to obtain a “blue card” and lawful permanent residency. The bill is a bridge until comprehensive reform can be enacted and will provide desperately needed legal status for farmworkers while stabilizing the agricultural economy. You can find fact sheets summarizing the bill, in both English and Spanish, as well as a diagram detailing the application process, on our website. Please complete this form to sign your organization on to a letter asking Members of Congress to support this legislation. The bill currently has 61 co-sponsors in the House and 11 co-sponsors in the Senate.

BARN Act Would Weaken H-2A Program Protections

Also last month, Rep. Allen (GA) re-introduced the “Better Agricultural Resources Now (BARN) Act,” H.R. 60. The bill would eliminate important H-2A program requirements that serve to protect both U.S. workers and foreign guestworkers. Among its various provisions, it would eliminate guaranteed housing, decrease farmworker wages, limit worker access to legal help, expand the H-2A program to year-round jobs, and change oversight of the program from the Department of Labor (DOL), which is currently tasked with protecting workers’ rights, to the Department of Agriculture (USDA). You can find more information about the bill in our fact sheet. The bill currently has no co-sponsors.

Preliminary Injunction Hearing Held in Case Regarding H-2A Wage Rates

On January 28, U.S. District Judge for the District of Columbia Timothy Kelly held a hearing in the case of Peri & Sons Farms, Inc. v. Acosta. As noted in a previous update, this lawsuit, brought by the National Council of Agricultural Employers (NCAE), seeks to reverse the DOL’s implementation of the 2019 Adverse Effect Wage Rates (AEWRs) for the H-2A program and freeze wages at the 2018 levels, which are lower for most states. The United Farm Workers, represented by Farmworker Justice and the law firm Covington and Burling LLP, had filed a motion prior to the hearing seeking to intervene in the case, as its members would be affected by any decreases to the AEWR. Several individual farmworkers, represented by Texas Rio Grande Legal Aid, Inc. (TRLA) and Public Citizen, had also filed a motion to intervene.

During the hearing, Judge Kelly granted both motions to intervene from the farmworker representatives. The Judge then heard oral arguments. The government and the intervenors reiterated the legal analyses in their written briefs requesting denial of the motion for preliminary injunction and dismissal of the case. Additionally, the Judge asked the parties if they would agree to a simultaneous ruling on both the preliminary injunction and the merits of the case. After the hearing, the parties agreed to such a joint ruling. The parties are now awaiting the Judge’s decision, which should be issued soon.

New Jersey Passes Minimum Wage Law That Discriminates against Farmworkers

On February 4, New Jersey Governor Phil Murphy signed a bill to gradually raise the minimum wage in the state to $15. Under the bill, most workers will be entitled to receive $15 per hour by 2024.  However, the bill allows employers to pay farmworkers lower wages than other workers. Farmworkers would gradually reach just $12.50 an hour by 2024. Farmworkers would have a possibility of reaching $15.00 an hour by 2027, but only if recommended by certain government officials. Farmworker Justice was critical of this fundamentally unfair bill and signed on to a letter, led by the Comite de Apoyo a los Trabajadores Agricolas (CATA), asking the New Jersey Senate not to take this step back for farmworkers’ rights. The New Jersey bill highlights the need for federal legislation to address the discriminatory exclusion of farmworkers from basic minimum wage and overtime protections guaranteed to other workers.

Worker Strike in California Results in Rollback of Pay Cuts

Last month, a worker walkout and protest resulted in the rollback of planned pay cuts for orange pickers in California. The United Farm Workers supported the walkout. The “Wonderful Halos” mandarin orange company had announced that the rate for filling a bin of oranges would be decreased by five dollars, to the detriment of many workers. The company restored the previous pay rate as a result of the protest. However, various other issues raised by workers remain unresolved, including uncompensated time. Many of the farmworkers were hired through third-party labor contractors. Under California law, growers and contractors are equally responsible for labor issues.

Shutdown Ended, But Another Shutdown Possible After February 15 Deadline

On January 25, President Trump announced an end to the longest government shutdown in U.S. history, which lasted 35 days, without getting any funding for the construction of a border “wall.” In late December, Trump had refused to sign spending bills that had been passed by Congress because they did not provide $5.7 billion in funds for this purpose. As a result, there was serious financial harm endured by many government workers who worked unpaid or were idled, as well as harm to the general population from curtailed government services.

The continuing resolution which re-opened the government runs out on February 15. Trump has threatened to trigger another government shutdown if a bipartisan conference which has been convened to discuss border security is unable to reach an agreement by that date. Trump has also suggested the possibility of declaring a national emergency in order to secure the funds for “wall” construction. It remains unclear whether there will be an agreement reached by the bipartisan conference by the deadline, whether there will be another government shutdown, and/or whether Trump will declare a national emergency to secure wall funding.

Update on Farmworker Health and Safety

WPS and CPA Rule Revisions Withdrawn by EPA

On January 28, the Environmental Protection Agency (EPA) officially withdrew its proposed revision of certain protections in the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rule from review by the Office of Management and Budget (OMB). As noted in previous updates, these two rules, which provide key safeguards for farmworkers from toxic pesticide exposures, were in danger of being weakened through rulemaking by the EPA. Last month, Acting EPA Administrator Wheeler committed in a letter to Senators that the agency would stop its efforts to roll back certain elements of the rules. The letter also stated that the EPA is still considering a potential revision to the Application Exclusion Zone (AEZ) provision of the WPS, which provides protection to workers and bystanders from off-target drift. FJ will continue to work to preserve this protection, including through the submission of comments once the proposed changes are published.

In the meantime, FJ, along with various partner organizations, is working to ensure passage of a bill to reauthorize the Pesticide Registration Improvement Act (PRIA), which includes key language protecting both the WPS and CPA rule. As stated by Senator Udall, “[t]here is no reason why we cannot act to provide a legally-binding solution that protects these rules and protects farmworkers. Congress should move quickly to resolve this issue and pass [the] worker-friendly PRIA agreement.”  

More States Intervene in Texas v. U.S. ACA Case

Last week, four more states - Iowa, Michigan, Colorado, and Nevada - motioned to intervene in Texas v. U.S. As a result, twenty states, led by California, now support the defense of the ACA in the lawsuit. An appeal in the fifth circuit is pending but a decision is expected later this year. In the meantime, the ACA remains in effect as the appeals process moves forward. More information about Texas v. U.S. can be found here and in previous FJ blogposts.

CMS Proposes 2020 Benefit and Payment Parameter Rule for ACA Exchanges

On January 17, the Centers for Medicare and Medicaid Services (CMS) published its proposed 2020 Benefit and Payment Parameter Rule. This rule, issued annually, establishes standards for the ACA exchanges. It impacts consumer access to health insurance plans and in-person assistance, as well as tax credits and cost-sharing. The 2020 proposed rule further reduces the role of navigators in ACA enrollment. It eliminates the requirement that navigators provide post-enrollment assistance, including appeals and exemptions applications, and referrals for tax assistance. The navigator training will also be reduced, eliminating required training on topics such as: outreach and education methods and strategies, providing linguistically and culturally appropriate services, and working effectively with limited English proficient, rural, and underserved populations. A complete analysis of the proposed rule can be found on the Health Affairs blog. A CMS fact sheet on the proposed rule can be found here. The comment period on the proposed rule ends February 19.
 

Farmworker Justice Condemns New Jersey Legislative Proposal to Discriminate Against Farmworkers in Minimum Wage Law

          New Jersey state legislators are working on legislation to raise the state minimum wage gradually in steps, from the current $8.85 per hour, to $15.00 per hour by 2024.  But the proposed legislation would move farmworker rights backwards by creating a new exception from the state minimum wage for agricultural workers.  Farmworkers would not be entitled to receive $15.00 per hour by 2024.  Instead, employers could pay farmworkers lower wages that would gradually reach $12.50 an hour by 2024.  

            While the proposed compromise also has a slower phase-in for employees of small businesses and some seasonal workers, these workers would reach $15 per hour by 2026, and by 2028 will have an equalized minimum wage with other workers.  But all farmworkers, regardless of the employers’ size, would be excluded from a guaranteed $15.00 per hour rate.  Farmworkers would have a possibility of reaching $15.00 an hour minimum by 2027, but only if recommended by certain government officials.

                   The proposed compromise is out of step with the labor market, even for this low-paid occupation.  According to the U.S. Department of Agriculture’s Farm Labor Survey of field and livestock workers, in the region that includes New Jersey (along with Delaware, Maryland and Pennsylvania), the average wage for farmworkers during 2018 was $13.15 per hour.   Five years from now, the minimum wage for these low-wage workers should not be a mere $12.50 an hour.

            The proposed wage discrimination is fundamentally unfair.  Much of the longstanding discrimination against farmworkers in wage and hour protections is rooted in racism and political expediency. Today, the majority of agricultural workers are Latino. Discrimination has persisted, depriving farmworkers of basic workplace protections and fundamental human and democratic rights.  It’s time to end this unjust discrimination, not extend it. New Jersey’s minimum wage law hasn’t been discriminating recently and shouldn’t start now. 

           Because many farmworkers’ jobs are seasonal, it is especially important that they earn enough during the season to support themselves and their families if they cannot find other work during the off-season.  Depriving farmworkers of the minimum wage applicable to other workers harms the very workers most in need.

A sub-minimum wage is also inappropriate because farm work is ranked as one of the most dangerous jobs in the United States.  It’s often back-breaking work in high temperatures with extraordinary productivity demands on the people laboring in the fields to harvest produce and on dairy farms to produce milk.   

            A low minimum wage is especially harmful for the most vulnerable workers who lack the bargaining power to win improved wages.  The large majority of farmworkers are immigrants, many of whom have been terrorized by the Trump Administration’s crackdown on immigrant communities.  This fear often causes farmworkers to avoid challenging unfair or illegal employment practices, which impacts all farmworkers, regardless of their immigration status.  And because many farmworkers are not citizens, they lack the political power that their employers exercise.

            A low minimum wage also harms many law-abiding, reasonable agricultural businesses that are trying to do the right thing by treating farmworkers with respect and compensating them fairly.  Such responsible employers must compete against businesses that maximize profits by shaving their labor costs.      

              “Farmworker Justice calls on the New Jersey legislature and Governor to treat farmworkers equally with other workers and guarantee them the same path to $15.00 an hour as other workers in the state’s economy, said Farmworker Justice President Bruce Goldstein.  He added, “New Jersey’s government officials should demonstrate respect for the valuable role played by farmworkers who feed us and should not deprive farmworkers of the equal protection of the law.”

Farmworker Justice Update - 01/11/19

Agribusiness Employers File Suit to Stop Implementation of 2019 AEWR

On January 7, the National Council of Agricultural Employers (NCAE), along with grower Peri & Sons Farms, Inc., filed a lawsuit in D.C. federal court seeking to stop the Department of Labor (DOL)’s implementation of the 2019 Adverse Effect Wage Rates (AEWRs) for the H-2A program. In order to ensure that U.S. workers are not adversely affected by the H-2A program, H-2A employers must offer the highest of five minimum wage rates: the applicable federal or state minimum wage; the local prevailing wage for that occupation; any collectively bargained wage rate; or the AEWR.

The AEWR is set annually by DOL based on the U.S. Department of Agriculture’s surveys of wages paid by agricultural employers.  The current formulation of the AEWR, which was reinstated in the 2010 H-2A regulations, was initially established under the Reagan Administration. The NCAE lawsuit seeks to stop the implementation of the 2019 wage rates and sought a temporary restraining order, which was denied on January 8. DOL had already announced the new AEWR rates for 2019 in December 2018. The new wages were set to be implemented on January 9, meaning that as of Wednesday (January 9) and for the time being, the 2019 AEWR rates are now in effect. However, litigation is ongoing and the judge will soon determine whether or not to grant a preliminary injunction stopping implementation of the new wages.

Also on January 9, the United Farm Workers union (UFW) filed a motion to intervene in the case, as its members would be affected by any decreases to the AEWR. Farmworker Justice is representing the UFW in this case, along with the private law firm Covington and Burling LLP, on a pro bono basis. If the growers’ lawsuit succeeds, many U.S. workers, as well as H-2A workers, will receive lower wages. The 2019 AEWRs for most states are higher than the 2018 rates, following a pattern of modest improvements over the past few years. This lawsuit is the latest example of agricultural employers admitting a tightening farm labor market, which should result in competitive wage increases, while seeking exemption from the law of supply and demand that applies to other businesses.

New Jersey Minimum Wage Law Might Discriminate Against Farmworkers  

New Jersey legislators are negotiating a potential bill to increase the state’s minimum wage to $15 an hour. However, a key lawmaker, NJ Senate President Steve Sweeney, is proposing to exempt farmworkers from the $15 per hour minim wage; instead subjecting them to a lower minimum of wage of $12.50 an hour. Sen. Sweeney represents an area of South Jersey with many farms. According to data from the Bureau of Labor Statistics, the median farmworker wage in New Jersey is currently between $11.70 and $12.92 an hour; thus, the “increase” to $12.50 would not be a wage increase in real terms for many farmworkers. $12.50 is also less than the 2019 H-2A program AEWR for the state of New Jersey, which is $13.15, further proof that the supposed pay increase would not represent a meaningful improvement on farmworkers’ current wages.

As stated by Farmworker Justice President Bruce Goldstein, this proposal would be “a continuation of a long history of discrimination against farmworkers.”  We also agree with CATA, a New Jersey nonprofit group that advocates for migrant farmworkers, that farm work is no less valuable than any other category of work, and farmworkers deserve the same minimum wage as any other worker.  It’s time to end the unfair and unequal treatment of farmworkers; not create new discriminatory exceptions from basic protections other workers enjoy.

Shutdown Continues as President Trump Insists on Border Wall Funding

Today marks day number twenty-one (21) of what may soon become the longest government shutdown in U.S. history. The partial shutdown is a result of President Trump’s insistence that Congress provide over $5.7 billion to fund the construction of a wall on the U.S.-Mexico border. Democratic Congressional leaders have stated that they will not provide any amount over $1.6 billion for border security (which was the amount in a previous Senate appropriations bill for FY 2019).  President Trump is also reportedly weighing whether to declare a national emergency along the border in order to bypass Congressional approval for funding for the wall. Meanwhile, nearly 800,000 federal workers have either been furloughed or have had to continue working without pay, affecting a wide range of government services.

Senate to Weigh William Barr Nomination for Attorney General  

The Senate Judiciary Committee is currently scheduled to hold confirmation hearings on January 15 and 16 for William Barr for the position of Attorney General. Earlier this week, Senate Minority Leader Chuck Schumer (NY) called on President Trump to withdraw Barr’s nomination, based on his previous criticism of the Mueller investigation. Barr previously served as Attorney General during the Administration of George H.W. Bush. A coalition of civil rights organizations recently expressed serious concerns regarding Barr’s nomination, given his past record on subjects ranging from criminal justice reform to LGBTQ and reproductive rights, as well as his anti-immigrant views. Some of his troubling anti-immigrant positions include his support for the current administration’s Muslim ban as well as his past role in detaining HIV-positive Haitian asylum seekers at Guantanamo Bay in the early 1990s.

Update on Farmworker Health and Safety

EPA Backs Off Plan to Weaken Worker Protection Rules

Last week, Acting Administrator Wheeler committed in a letter to Senators Carper (D-DE) and Barrasso (R-WY) to abandon EPA’s efforts to rollback critical elements of the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators (CPA) rule, in exchange for Senate confirmation of various political appointees to the agency. After two years of efforts by environmental and worker rights advocates to defend the WPS and CPA rule before the EPA, the courts and Congress, and to ensure the rules’ effective implementation, this is a major breakthrough. The draft of the proposed rules that we have been opposing are currently under review at the Office of Management and Budget (OMB), and we will continue to monitor EPA’s actions to make sure the proposals are formally withdrawn. FJ will also continue its efforts to codify Wheeler’s promises in legislation early in this congressional session through language in the reauthorization of the Pesticide Registration Improvement Act (PRIA).

Wheeler’s letter also states that the EPA is still planning to propose a revision to the Application Exclusion Zone (AEZ) provision of the WPS, with a public comment period of at least 90 days. We fully expect EPA to propose harmful changes to the AEZ provision later this year. The AEZ provides a measure of protection to workers and bystanders from off-target drift during pesticide applications. FJ and partner organizations will work to preserve those protections, including through the submission of comments once the proposed changes are published.

Legislation Banning Chlorpyrifos Introduced in House

Earlier this week, Representative Nydia Velasquez (D-NY) introduced the “Pesticide Protection Act,” which would ban the sale of chlorpyrifos, a toxic chemical that has been linked to damaging health outcomes in workers, pregnant women and children. The bill, H.R. 230, currently has over 40 co-sponsors. The EPA was previously set to ban the use of chlorpyrifos under the Obama administration; however, it later reversed its decision under the Trump administration. Farmworker Justice, along with various environmental and worker rights groups, is currently involved in a lawsuit against the EPA in which the 9th Circuit Court of Appeals has ordered the agency to ban chlorpyrifos. However, EPA has appealed that decision and the litigation is still ongoing.

Labor Contractor Fined by OSHA after Worker Heat Stress Death

Last month, Georgia agricultural labor contractor Beiza Brothers Harvesting was fined $12,934 by the Occupational Safety and Health Administration (OSHA) for conditions that led to the death of a worker from heat stress. Previous FJ updates detailed the conditions leading up to the tragic death of the 24-year old worker while picking tomatoes in extremely high temperatures. OSHA also issued additional citations against Beiza Brothers related to a failure to train employees about hazardous chemicals and unsafe equipment, but did not levy additional fines for these citations.

Update on Texas v. U.S. and Status of ACA

After Judge O’Connor issued a stay in the Texas v. U.S. lawsuit, the 17 Democratic Attorneys General who defended the Affordable Care Act’s (ACA) provisions filed an appeal with the Fifth Circuit on January 3. The Department of Justice (DOJ) filed its own appeal the following day. The Fifth Circuit has yet to schedule an initial briefing. As the appeals process moves forward, the ACA and its provisions remain in effect. Meanwhile, the House of Representatives filed the first of two motions to intervene in defense of the ACA.

A recent poll conducted by Protect Our Care shows that more than half of voters oppose the recent decision in Texas v. U.S. and 59% want to see the ACA remain in effect with fixes made as necessary. On January 3, the Centers for Medicare and Medicaid Services (CMS) released its final enrollment report that showed 8.4 million consumers enrolled in health insurance through healthcare.gov during the 2019 open enrollment period. This number is only 4% less than enrollment last year, despite the additional cuts to outreach and navigator programs. Enrollment is still open in a handful of states including Colorado (until January 12), California (January 15), and New York (January 31).

Farmworker Justice Update - 12/18/18

Public Comment Deadlines for Proposed H-2A Program Changes

As a reminder, there are various opportunities to comment in response to Federal Register notices related to the H-2A program, with deadlines next week. As mentioned in previous updates, the Department of Labor (DOL) issued notices of proposed rulemaking regarding the requirements for recruiting U.S. workers by employers seeking certification in both the H-2A and H-2B temporary guestworker visa programs. The deadline for submitting comments for both notices is now December 28 (it was previously December 10 but was extended).

DOL has also announced a proposed revision to 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 is circulated to inform prospective job applicants of  job terms and instructions. The deadline for submitting comments to this proposal is December 24.

Florida H-2A Labor Contractor Fined for Violation of Program Requirements

Florida H-2A labor contractor SOL Harvesting LLC was recently fined $53,428 by the Department of Labor (DOL)’s Wage and Hour Division (WHD). Among various violations of the H-2A program requirements, DOL WHD found that SOL Harvesting failed to provide employees copies of their work contracts and reimburse them for transportation and visa fees. Workers also were not provided with housing that met minimum safety and health standards. The bulk of the amount paid by the contractor constituted back wages, as DOL only assessed a civil money penalty of $2,368 for the H-2A program violations. SOL Harvesting had hired approximately 100 workers to harvest cucumbers, cabbage, kale and onions at Scott’s Farms in Mt. Dora, Florida. To our knowledge the farm operator was not penalized and the labor contractor has not been debarred from the H-2A program.

USDA Releases Report on Farm Labor Markets in the U.S. and Mexico

The U.S. Department of Agriculture (USDA)’s Economic Research Service (ERS) recently released a report entitled “Farm Labor Markets in the United States and Mexico Pose Challenges for U.S. Agriculture.” The report finds that the U.S. farm labor market is showing signs of tightening, including increases in farm wages, more widespread use of the H-2A temporary agricultural worker visa program, and a shrinking supply of farm labor from Mexico. Among the potential options for employers to respond to a tighter labor market proposed by the study are raising wages, improving benefits and working conditions, increased mechanizing of crops, switching to less labor-intensive crops and greater employment of guestworkers. The report emphasizes guestworker status as a mechanism for recruiting future farmworkers, rather than offering potential agricultural workers, or current undocumented workers, the opportunity to adjust their immigration status or have a path to U.S. citizenship.  

Various Appropriations Bills Expire December 21, Government Shutdown Possible

Earlier this month, Congress passed a temporary spending bill for FY 2019, called a continuing resolution (CR), to fund various government agencies, including the Department of Homeland Security (DHS) and the Department of Agriculture (USDA), through December 21. Despite opposition from Democrats and reluctance among some Republicans to press the issue, President Trump is insisting on $5 billion in funds for border wall construction in the DHS appropriations bill and has stated he would be “proud” to shut down the government if that amount is not agreed to. A government shutdown could lead to many federal employees being furloughed, including at DHS, USDA, the Department of Justice and the State Department. As noted in previous FJ updates, two of the proposed FY 2019 appropriations bills have troubling language regarding the H-2A temporary agricultural worker visa program. FJ has been advocating against a possible rider in the DHS appropriations bill which would expand the H-2A program to year-round industries, as well as report language in the USDA bill on the creation of an H-2A application portal.

In addition, as we reported in the last update, there are efforts to freeze wage rates in the H-2A program by keeping the Adverse Effect Wage Rate (AEWR) at the 2018 levels instead of allowing the expected 2019 rates to go into effect.  These efforts are aimed at Congress and the appropriations process as well as the Administration. The 2019 hourly wages are expected to increase approximately 6% nationwide, with higher increases for some states. 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. Farmworker Justice opposes these efforts to freeze the AEWRs in the H-2A program.

Support This Publication and the Work of Farmworker Justice

The policy monitoring, analysis and advocacy of Farmworker Justice serves the farmworker community. Farmworker-serving organizations throughout the nation count on Farmworker Justice.  And Farmworker Justice counts on you for your support to make our work possible. Please make a charitable contribution to Farmworker Justice, in any amount. You may donate with a credit card online or mail your donation to Farmworker Justice, 1126 16th St., NW, Suite LL-101, Washington, D.C. 20036.  Thank you!

Update on Farmworker Health and Safety

FJ Issue Brief on Specialty Care for Farmworkers

Farmworker Justice recently published a new issue brief for health centers and clinicians that outlines the continuing challenges in providing specialty care to agricultural workers and their families. The brief discusses lessons learned from FJ’s “Unidos” project - a collaborative effort between FJ and two community partners: Campesinos Sin Fronteras and Vista Community Clinic - to deliver dermatological care to agricultural workers in Somerton, Arizona and Vista, California. The brief also explores opportunities for telehealth, based on a related effort with Harvard’s Center for Health Law and Policy Innovation (CHLPI) that involved workers directly in discussions about telehealth interventions. Based on lessons learned, the brief highlights recommendations for health centers to promote access to specialty care among agricultural workers and their families.  

GAO Report Finds Agriculture Has Highest Rate of Child Work-Related Deaths  

A recently published study by the Government Accountability Office (GAO) found that agriculture accounts for more than half of child worker deaths, with 237 fatalities between 2003 and 2016. The study was requested by Reps. Rosa DeLauro (CT) and Lucille Roybal-Allard (CA) as an update to GAO’s 2002 child labor report. In a statement on the report’s release, the Representatives noted: “This report confirms that child labor is contributing to a devastating amount of fatalities in the United States – disproportionately so in the agricultural sector. In that industry, kids are often exposed to dangerous pesticides, heavy machinery, and extreme heat, and they are being killed as a result. That is unacceptable.  Our government must take these findings as a call to action […].” The federal Fair Labor Standards Act (FLSA), which regulates child labor, allows children to be employed in agricultural jobs, including in hazardous tasks, at younger ages than in other occupations. Rep. Roybal-Allard has been a leader in efforts to end the discrimination in the law regarding child labor on industrialized farms. You can find the full GAO report, entitled “Working Children: Federal Injury Data and Compliance Strategies Could Be Strengthened,” here.

Congress Passes Farm Bill, No PRIA Language Included

Last week, both chambers of Congress passed the Farm Bill, which is expected to be signed into law by the President later this week. Originally, the House and Senate versions of the bill were very different, particularly with regard to provisions on nutrition and environmental protection programs. The final bill did not include controversial cuts to the Supplemental Nutrition Assistance Program (SNAP) that were in the original House bill and preserved many important environmental protection programs.

The final Farm Bill did not include language regarding the Pesticide Registration Improvement Act (PRIA). Earlier this year, the Senate passed a standalone version of PRIA conserving key provisions of two rules protecting farmworkers from pesticide exposure - the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rule. FJ, along with other farmworker and environmental advocates, is calling on the House to pass this version of PRIA before the end of the legislative term.

Judge Issues Ruling against ACA in Texas v. United States

On December 14, a federal judge in Texas ruled the Affordable Care Act (ACA) unconstitutional after the elimination of the tax penalty in the 2017 tax bill. In his ruling, Judge Reed O'Connor wrote that the individual mandate could not be severed from the rest of the ACA, rendering the law unconstitutional. The lawsuit was led by Texas and 19 other states. California, along with 16 other states and Washington, DC, intervened to defend the ACA in court after the Trump Administration declined to defend key provisions of the law. Attorney General Xavier Becerra of California said that they will challenge the ruling. If the Judge's decision stands, an estimated 17 million Americans could lose their health insurance, including those who gained coverage under Medicaid expansion. The ACA’s pre-existing conditions protections, along with other consumer protections in the law, would also no longer exist.

The ACA remains in effect as the appeals process moves forward. While open enrollment for insurance plans on healthcare.gov ended on December 15, enrollment in some states, including California and New York, continues. A Kaiser Family Foundation health poll conducted in November found that 61% of surveyed consumers did not know the deadline for enrollment. While final enrollment numbers are not yet available, so far, enrollment has declined compared to last year.

New Guidance for Section 1332 Waivers

The Trump Administration released new guidance for Section 1332 waivers that will provide states with flexibility that could ultimately weaken certain ACA provisions. Section 1332 innovation waivers, issued by the Centers for Medicare & Medicaid Services (CMS), allow states to experiment with strategies to provide residents with health coverage. Guidance released in 2015 provided a strict interpretation of statutory guardrails that will affect consumers. The new guidance, published in October 2018, establishes less restrictive standards such as expanded definitions of coverage to include short-term plans and encouraging states to use private exchanges to offer subsidies for non-ACA-compliant plans. More information about this guidance can be found on the Kaiser Family Foundation website. The new guidance is currently open for public comment until December 24. If you are interested in learning more, you can read this analysis by Families USA.

Over 200,000 Comments Submitted on Public Charge Proposal

Thank you to everyone who shared and submitted comments opposing the Administration's proposed changes to public charge. According to regulations.gov, over 216,000 comments were submitted and we expect that number to grow. FJ will continue to provide any relevant information on public charge and farmworkers. Visit the Protecting Immigrant Families website to learn more about the campaign, led by NILC and CLASP, and future advocacy efforts.

Best Wishes for a Healthy and Happy New Year!
 

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.

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