Immigration and Labor Rights

Farmworker Justice Immigration Update - 10/31/14

As we approach the midterm elections, pieces of information are surfacing in the press about President Obama’s plans for executive action. According to recent news, President Obama has not yet made a decision on what form administrative immigration relief will take. According to Buzzfeed, the Department of Justice and the Department of Homeland Security are expected to pass along their recommendations to the White House in the next two weeks for the President’s review and decision-making. The administrative relief is expected to include some kind of deferred action or parole program that would provide protection from deportation and work authorization for a defined group of undocumented immigrants.

 Many immigration advocates are disappointed by rumors that the recommendations may provide for potential administrative relief to only a limited number of individuals. The recommendations will likely include factors such as length of residence in the United States and family relationships with others in the country. For example, if the President only offers relief for undocumented immigrants who have been in the US for 10 years and have US citizen children, an estimated 3 million individuals would be eligible, as opposed to other proposals that could cover up to 5 million individuals. The Senate immigration bill, on the other hand, would have offered permanent relief for up to 8 million individuals, including separate farmworker and DREAMer provisions. Many advocates have been urging the President to be bold in his actions, pointing out that he will face Republican criticism for any administrative relief action, no matter the size. Advocates are concerned that the President may choose a smaller option. DREAMer groups are particularly disappointment that the parents of DACA-recipients could be excluded from relief.

A program that only covers individuals who have been in the U.S. for 10 years and have U.S. citizen children would be very challenging for farmworkers and others in the informal economy. Many farmworkers would have difficulty proving residency in the United States for 10 years if they are paid in cash and don’t have bank accounts; live in employer-provided housing or shared housing; or otherwise lack documentation such as utility bills in their own name. Farmworker Justice and allies continue to raise issues such as these with the Administration to ensure that any administrative relief program is as inclusive as possible and takes into consideration the unique challenges faced by farmworkers.

Farmworker Justice believes President Obama must act boldly to provide broad affirmative administrative relief to address the millions of undocumented people who contribute to our economy and society but suffer due to our broken immigration system. The Administration must take action because the House of Representatives has refused to address the urgent need for comprehensive immigration reform. Any action President Obama takes must be inclusive of farmworkers, the majority of whom are undocumented. Broad, bold administrative relief would help farmworkers, their families and their communities, and would help stabilize the farm labor force and ensure a prosperous agricultural sector.

Members of Congress continue to express their support for the President taking executive action on immigration. Representatives Nancy Pelosi (D-CA), Luis Gutierrez (D-IL) and Zoe Lofgren (D-CA) co-authored an op-ed in Thursday, expressing confidence that President Obama will announce an affirmative relief program and outlining his legal authority to do so. The Members of Congress mention that among Obama’s options for affirmative relief, he could “recognize that it is ‘essential for agriculture’ that farmworkers who toil in our fields do so without fear.”

Regarding timing for the President’s announcement, the only timeframe given so far has been the President’s assertion that he would take action by the end of the year. Some are predicting that the announcement may not come until December due to a possible run-off election for the Louisiana Senate seat and the interest in completing the appropriations process prior to the announcement. The current continuing resolution will expire on December 11 and if the President makes his announcement before the government is funded, the House may attempt to limit the President’s action through the appropriations bill as it tried to in the summer when it voted to defund DACA. Some individuals have also expressed concern that if there is a runoff election in the Georgia Senate race which would take place January 6th, the President may delay his announcement yet again. The runoff could create pressure for the President to delay by Democrats who believe that the executive action would motivate Republicans to turn out for the runoff, hurting the Democratic candidate Michelle Nunn’s chances of winning. If the Democrats need Nunn to win to maintain control of the Senate, the pressure on the President will be more intense. However, the President and his staff have repeatedly promised that he will announce executive action by the end of the year and another delay would produce much anger from immigrant communities and reflect poorly on the President’s willingness to keep his promises.

H-2A Program Increases Show the Program Working Well for Employers

Data on the H-2A program for Fiscal Year 2014 released last week by the Department of Labor show that the H-2A program is far from “broken,” as growers continue to claim. From FY 2013 to FY 2014, the number of H-2A worker positions certified increased by 18%. The number of applications from FY2013 to FY2014 also increased by 13%.1 North Carolina remains the number one user of the H-2A program, bringing in up to14,502 H-2A workers in FY2014, a 17% increase from last year. Several states had significantly large increases in the number of H-2A workers certified, including a 45% increase in Washington, 44% in California and 35% in Florida.

The increase in H-2A program usage has not been limited to this past year. The program has more than doubled in size in recent years: from about 48,000 worker positions certified in FY 2005 to about 117,000 worker positions certified in FY 2014—an increase of 141%.

Complaints by growers that the H-2A program is “broken” are thinly-veiled attempts to get a new guestworker program with lower wages and fewer worker protections. But the H-2A program wages and worker protections are greatly needed. Despite the current H-2A program’s modest protections aimed at reducing exploitation of guestworkers and protecting the jobs, wages and other labor standards of U.S. farmworkers; the program is rife with abuse. H-2A workers typically arrive indebted and fearful, are tied to their employer for the length of their visa, and must leave the country when the job ends, factors which make workers extremely dependent on their employers and vulnerable to abuse. No matter how many years H-2A workers spend in the U.S., they never earn the opportunity to become an immigrant or citizen.

With comprehensive immigration reform unlikely next year, some growers may push for a new agricultural guestworker program with reduced government oversight, low worker wages and reduced protections; with no legalization program for current experienced undocumented farmworkers. Farmworker Justice will continue to educate policymakers and the public about such harmful proposals. 

Happy Halloween and don’t forget to vote next week!

Note that the number of workers certified is not an accurate reflection of the number of H-2A workers who entered the US in FY 2014 as growers may not bring in the total number of workers listed on their certification.

Farmworker Justice Immigration Update - 10/17/14

Administrative Relief, Family Detention & Fraud in the H-2 Visa Programs

In recent weeks President Obama has reaffirmed his commitment to announcing executive action on immigration reform before the end of the year. The President also said that he remains committed to passing immigration reform through Congress, warning that it is “suicide for the GOP not to address the issue.” Meanwhile, some Democrats running in close races have distanced themselves from pro-immigration stances. Most notably, Alison Lundergan Grimes is running an offensive “anti-amnesty” advertisement accusing incumbent Senator Mitch McConnell (R-KY) of being pro-amnesty due to his support for the 1986 immigration law that legalized undocumented immigrants. In the ad Grimes says “I’ve never supported amnesty or benefits for illegal immigrants, and I never will.” Several progressive and get-out-the-vote groups, such as and the Latino Victory Project, have expressed their strong opposition to the ad, calling on Grimes to take it down.

While immigrant communities await administrative relief, detentions and deportations continue. In Florida, immigrant and worker advocates are criticizing Florida Chief Financial Officer Jeff Atwater for going after undocumented immigrants for workers’ compensation fraud. Last July, the state arrested more than 100 workers in a raid on a fruit and vegetable processing plant in Naples, FL. Workers are being charged with the felony of identity theft for using a fake ID to get a job and sign up for workers’ compensation insurance. However, the workers had not submitted any false workers’ compensation claims, which is typically what is considered workers’ compensation fraud. Instead, it appears that this is a roundabout way for Atwater to enforce immigration law.

The Obama administration is being seriously criticized for its increased use of detention facilities for families from Central America, many of whom have legitimate claims for asylum. Immigration and refugee advocates and religious organizations argue that detaining families and children is unnecessary and inhumane. The Obama Administration’s justification for detaining the families is to deter more families from coming and to ensure that they show up for court proceedings. However, the US Executive Office for Immigration Review recently stated that 85% of the unaccompanied minors who have recently entered the country and have been placed with relatives in the US are showing up for their court hearings, undermining the argument that detention is necessary.

Moreover, there are serious concerns regarding the treatment of women and children in these detention centers. MALDEF and others filed a lawsuit on behalf of women in family detention in the privately-run Karnes facility in Texas alleging sexual harassment and abuse by guards. Three guards are accused of engaging in sexual acts with detainees and making inappropriate remarks in front of children and other detainees.

However, there are some positive developments around the issue of ICE detainers. An increasing number of municipalities are refusing to honor ICE detainers, or requests to hold undocumented immigrants 48 hours past their scheduled release date from jail. Several federal court rulings on the issue have held that ICE detainers are not mandatory and they do not constitute probable cause. This opens local law enforcement up to the possibility of being sued for violating individuals’ constitutional rights. According to the LA Times, 225 local law enforcement agencies have decided to completely ignore the requests. Another 25 have limited the circumstances under which they will honor the requests to individuals who have committed more serious crimes.

Grower Representative Accused of Defrauding the U.S.

Harry Lee Wicker, Jr. was recently indicted by the federal government for criminal conspiracy to defraud the United States in a scheme involving the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program. Wicker is Deputy Director of the North Carolina Growers Association (NCGA), a large farm labor contractor that brings in guestworkers from Mexico, and a board member of USA Farmers, which represents employers of guestworkers.

Wicker has testified several times in Congressional hearings on behalf of agricultural employers seeking to eliminate labor protections and reduce government oversight of the H-2A program.

Wicker was added to a case that was previously filed by the U.S. Attorney in federal court in North Carolina. Wicker’s co-defendants in the 87-count indictment of USA v Eury, are Craig Stanford Eury, Jr. and Kenneth White. Eury serves as the Executive Director of NCGA and the founder and primary interest holder of International Labor Management Company (ILMC), a North Carolina company engaged in preparing and submitting applications for H-2A and H-2B workers on behalf of client companies. White is another Deputy Director of NCGA.

The indictment alleges that under a scheme to defraud, Lee Wicker improperly directed the payment of over $1,000,000 to a limited liability company under his control. The indictment seems to allege that the farm operators that are members of, and are supplied with guestworkers by, the NCGA and/or ILMC were victims of fraud. The defendants allegedly overcharged growers and pocketed the money. Among other claims, the indictment alleges that ILMC, Eury and others instructed H-2B employers on how to interview US workers so as to inhibit their hiring and to hire token US workers. The alleged result was to allow ILMC to profit from hiring guestworkers instead of United States citizens. These criminal charges, if proved, would suggest that the defendants sought to evade the federal immigration law’s requirement that qualified, available U.S. workers should be hired before an application for guestworkers is approved.

Wicker most recently testified before the House Judiciary Committee on May 16, 2013, in favor of Rep. Goodlatte’s “Agricultural Guestworker Act,” HR 1773, which would create a new program with lower wages, fewer requirements for ensuring job opportunities for U.S. citizens and lawful permanent residents, and allow exploitative conditions for hundreds of thousands of new guestworkers. According to Wicker’s testimony before the House Judiciary Committee, the NCGA has been the single largest user of H-2A agricultural guestworkers for over 15 years. In his testimony, Wicker calls the H-2A program “expensive, overly bureaucratic, [and] unnecessarily litigious.”

The H-2A program and its predecessor have been characterized by widespread evasions of their modest labor protections for U.S. and foreign workers. Indeed, a guestworker program is inherently problematic because the foreign workers are denied freedoms most workers possess and are vulnerable to abuse. Farmworker Justice has long called for greater oversight and stronger enforcement of the H-2A program’s requirements.

Labor Violations on Florida Farms

The Department of Labor’s Wage and Hour Division (WHD) issued a press release on findings of wage, housing and transportation violations under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act in its ongoing initiative focusing on Central and Northern Florida farms. So far, the WHD has assessed $100,000 in back wages for 277 workers and more than $25,000 in civil money penalties. The high rates of labor violations in agriculture is directly related to the high portion of undocumented farmworkers in the workforce and demonstrates the urgent need for legalization of undocumented immigrants. Farmworker Justice continues to advocate for Congress to pass immigration reform with a path to citizenship and for President Obama to create a broad affirmative relief program for undocumented immigrants that includes farmworkers and their families.

Farmworker Justice Immigration Update 10/3/2014

Obama Promises Administrative Action on Immigration by the End of the Year

President Obama’s delay in announcing administrative relief for undocumented immigrants has resulted in anger and protests against him by some individuals and groups. Last night, seeking to reassure the frustrated constituency, President Obama spoke at the Congressional Hispanic Conference Institute’s (CHCI) annual gala. Sen. Menendez (D-NJ), introduced by the President, telling him “We look to you Mr. President for big, bold, unapologetic administrative relief for millions. During his keynote speech, President Obama promised that he would announce his plans for executive action by the end of the year, noting that "it's not a question of if, but when" he will take executive action on immigration reform. Administration officials and Vice President Biden have also indicated the President will take action by the end of the year. Some immigration advocates, frustrated by the delays and the continued deportations, protested President Obama at the gala.

Meanwhile, House Speaker John Boehner (R-OH) declared his desire to enact immigration reform and his belief that he can convince Republicans to do it. Boehner has repeatedly said that he supports an immigration overhaul, but he reportedly told President Obama this summer that the House would not pass immigration reform this year. The Speaker has been unwilling to bring any bills to the floor other than bills to defund or end DACA. There is no indication that House Republicans have any more interest in passing immigration reform now than they did throughout 2014. If anything, the opposite is true. With the Republican Presidential primary beginning in 2015, there is little chance that House Republicans will be willing to compromise on immigration reform. As Dara Lind writes, Boehner already asked the President to hold off on executive action last spring to give the House time to act, and the House did nothing. And again, in discussing his interest in immigration legislation, Boehner has said that if Obama acts administratively it could “poison the well.” Boehner’s repeated promises, lack of action and attempts to link legislation with the lack of any administrative relief call into his question his real motives for raising the issue of immigration legislation again at this time.

House Judiciary Chairman Bob Goodlatte (R-VA) said that if President Obama takes executive action on immigration, then Congress should sue him. Goodlatte said that Obama should work with Congress to make any changes to current policy. Goodlatte himself made no effort to reach across the aisle and come up with compromise legislation on immigration. Instead he sponsored offensive one-sided bills, such as HR 1773, “the Agricultural Guestworker Act” which would allow for growers to bring in massive numbers of agricultural guestworkers with fewer legal protections than existed in the notoriously abusive Bracero Program and no path to immigration status for the current experienced workforce. 

A poll shows that the President’s approval rating by Latinos has dropped 15% since April. Some Latino groups are encouraging Latinos not to vote for the Democratic Senators who voted for the recent attempt to end DACA. Other groups and individuals stress the need for Latinos to come out and vote to show their strength. In speaking at the CHCI conference, Maria Teresa, president of Voto Latino said, “Until we try to actually recognize that our number one initiative is to organize each other . . . we’re always going to be left behind.”

Farmworker Justice believes that voting is an opportunity for people to express their opinion on many issues, including immigration and labor rights. While only the federal government can grant immigration status with a path to citizenship to undocumented immigrants, state and local elections are important too. Some states have been passing laws that benefit farmworkers and others, such as drivers’ licenses for undocumented immigrants and increases in the state minimum wage. As another example, California recently passed several laws benefitting farmworkers and others.

Thank you for your support for farmworkers.  

Positive Developments for California Farmworkers and Other News

Agriculture is an industry rife with abuse of workers. Because the majority of workers are undocumented, it makes it very difficult for farmworkers to enforce the few labor protections that cover them. In the absence of immigration reform or administrative relief providing farmworkers with immigration status with a path to citizenship or protection from deportation and work authorization, the Department of Labor plays a critical role in ensuring that abuses of farmworkers are remedied.

A recent Department of Labor, Wage and Hour Division, (DOL) investigation in the Philadelphia-Southern New Jersey area highlights the importance of labor law enforcement in agriculture. The DOL investigation revealed that a farm labor contractor, Heng Heng Agency, Inc. and its president, Visith Oum, violated the Fair Labor Standards Act’s (FLSA) minimum wage and record keeping requirements and the Migrant and Seasonal Agricultural Worker Protection Act’s (AWPA) safe transportation requirements, including the requirement that farm labor contractors obtain motor vehicle insurance in compliance with the law. According to the Philadelphia Inquirer, Heng Heng supplied 125 Latino, Vietnamese and Cambodian farmworkers to Medford Nurseries in Lumberton, NJ.

DOL’s investigation also found that Medford Nurseries was a joint employer of the workers, which means that they are responsible, along with the contractor, for compliance with the Fair Labor Standards Act’s and the Migrant and Seasonal Worker Protection Act’s provisions. Medford nurseries settled with the DOL and paid $36,505 in back wages to the workers. DOL is seeking an additional $146,100 in civil money penalties from Heng Heng for its willful and repeat violations of the FLSA and AWPA.

Heng Heng and Oum have a history or labor law violations. They were recently sued by another agricultural employer, Frank Donio, Inc. to whom Heng Heng supplied labor. Donio, Inc. is seeking to recover $650,000 in back wages that Donio paid to 500 workers to settle a DOL investigation. 

Holding growers accountable under the doctrine of joint employment is essential for ensuring that exploited farmworkers receive just compensation for their injuries. As the Heng Heng case illustrates, legal action against an FLC alone may yield little in the way of lost wages or damages. FLCs are often transient, hard to find, and insolvent or otherwise judgment-proof. Suing them alone does little to provide victimized farmworkers with restitution or to deter future violations. Growers control the operation of their business, are in the best position to ensure that FLCs comply with workers’ rights, and that workers are adequately compensated if the FLCs violate the law. Holding growers accountable has proven to be the only way to effectively deter illegal conduct and provide farmworkers with meaningful remedies.

Some good news for farmworkers came out of California this week that will help address the abuses associated with farm labor contractors. The Governor signed into law AB 1897, which holds companies with 25 workers or more liable for most labor contractors’ wage violations and failure to provide workers’ compensation across industries. The law also restricts work site employers from shifting responsibility for occupational safety and health protections to contractors. In California, 55% of farmworkers employed on crop farms are hired by farm labor contractors or other intermediaries.1 At least in part, this trend reflects an effort by growers to evade responsibility for labor and immigration laws. The subcontracting model in agriculture and other forms of contingent labor supply have increasingly been used in other low-wage industries that have high rates of labor law violations as well. Although holding employers jointly liability for labor contractor violations is possible under certain federal and state labor laws, this issue often involves litigating the specific facts and circumstances of each case. AB 1897’s clear rule holding companies liable for their contractor’s wage payment and workers’ compensation will help ensure that companies exercise greater oversight over their contractors to ensure there is compliance with the law. At least one business oriented journal notes that by exercising greater oversight, company joint liability under other protections may in turn be implicated. This legislation, which was co-sponsored by the California Labor Federation, the International Brotherhood of Teamsters, and the United Food and Commercial Workers International Union and supported by the California Rural Legal Assistance Foundation, and others, should have a strong positive impact for farmworkers as well as other low-wage and contingent California workers. 

In addition to AB 1897, this past week Governor Brown signed into law two other pieces of legislation that should help prevent labor law violations for farmworkers and others. SB 1087, which is supported by the California Rural Legal Assistance Foundation and others, provides for increased sexual harassment training requirements for supervisors and farm labor contractors. Farm labor contractors will also have to answer questions about sexual harassment in their licensing exams. This legislation is one small step towards preventing the huge problem of sexual violence and harassment of farmworker women, but much more needs to be done to combat the rampant abuse.

Finally, Governor Brown signed SB 477, which provides protections for internationally recruited workers on visas coming to work in California. The Coalition to Abolish Slavery & Trafficking advocated for this bill, which is very similar to the protections included in the Senate’s comprehensive immigration reform bill, S, 744. Experiences over many years across various visa programs demonstrate the need for such oversight, monitoring, transparency and regulation of international recruitment systems. Workers’ experiences during recruitment abroad, which include fraud and debt due to recruitment fees, have a substantial impact on their earnings and working conditions in the U.S., as well as on those of the U.S. workers in the labor market where the foreign workers are employed. SB 477 seeks to address these abuses by requiring disclosures about job terms during the recruitment and prohibiting recruitment fees. SB 477 also requires foreign labor contractors to register with the Labor Commissioner and requires employers to use registered labor contractors. 

Unfortunately, Gov. Jerry Brown also vetoed legislation Sunday that would have made it harder for California farmers to stall new contracts under the California Agricultural Labor Relations Act.

Farmworker Justice applauds the California Legislature and Governor Brown for the enactment of these important laws protecting farmworkers and others. We sent a letter to Governor Brown in support of SB 1087 and AB 1897 and joined a sign-on a letter to Governor Brown from the International Labor Recruitment Working Group in support of SB 477. We continue to advocate at the federal level for immigration status and increased labor protections for farmworkers in order to end the abuse of farmworkers.  

1Philip Martin California Ag Employment: 2014 (last visited July 16, 2014).

Farmworker Justice Immigration Update 9/19/14

The past weeks have been extremely disappointing and disheartening for immigrant communities and immigration reform advocates. On September 6th, the White House announced a delay in President Obama’s plans for administrative action to address the broken immigration system, which he had previously promised would take place by the end of the summer. The President justified the delay, saying “… I'm going to act because it's the right thing for the country…But it's going to be more sustainable and more effective if the public understands what the facts are on immigration, what we've done on unaccompanied children and why it's necessary.” Cecilia Muñoz, Director of the White House Domestic Policy Council, also said that after the elections it will be easier to protect the actions he takes. The situation of unaccompanied minors at the border had garnered the attention of the American public and polling data showed that Americans were more concerned with immigration than they have been in the past.

Although President Obama, denied the role of politics in his decision to delay administrative relief, many argue that the real reason for the President’s delay is due to the upcoming elections. Control of the Senate is up for grabs this November and several Democratic Senators in tight races had asked for the delay.

Pro-immigration reform groups and some Democrats have criticized the President’s delay. Last week, the Congressional Hispanic Caucus (CHC) met with senior White House officials to express their frustration with the delay. White House officials reassured the CHC that the President will act by the end of the year. The CHC approved a resolution urging the President to act by the holidays. 

Meanwhile, anti-immigrant Senators Sessions and Cruz took advantage of their brief presence in DC (both the House and Senate are now out of session until after the November election) to push a measure opposing executive action by the President to address the broken immigration system. Specifically, the measure would have disallowed any new DACA applicants and prohibited the President from creating any new affirmative relief programs for undocumented immigrants. A procedural vote on the anti-immigrant measure failed on a 50-50 vote to garner the 51 votes needed to move forward. The Senators had tried to offer the proposal as an amendment to the continuing resolution to keep the government funded through December 11th and provide funding for the situation in Syria. Five Democrats joined Republican Senators in supporting the measure: Senators Kay Hagan (NC), Mary Landrieu (LA), Mark Pryor (AK), Jeanne Shaheen (NH) and Joe Manchin III (WV). Manchin was the only Democrat who voted for the measure who is not up for reelection this November.

Finally, check out the Economic Policy Institute’s blog “Here’s Why We Need to Legalize the Undocumented Immigrant Workforce.” The blog discusses an article in the Tennessean about exploited undocumented farmworkers on a tobacco farm in Tennessee who were threatened with immigration enforcement when they told their boss their plans to leave for another job. The article illustrates that the only way to end the exploitation of farmworkers is for the undocumented population to be granted protection from deportation and work authorization. Farmworker Justice will continue to press the President to provide a broad, bold affirmative relief program for undocumented immigrants that includes farmworkers and their families.  

Immigration Update 9/5/14

As the summer comes to an end, President Obama has yet to announce his executive action to reform the broken immigration system. Instead, reports indicate that President Obama may delay the announcement of his executive action on immigration until after the midterm elections. In June, the President said that he would announce executive action by the end of the summer. Although the White House has not said what the action will entail, it is expected that part of his action will involve granting millions of undocumented immigrants with strong ties to the U.S. protection against deportation and work authorization. The White House has suggested that action could be delayed by the unaccompanied minor crisis at the border but the real reason that they are considering the delay appears to be political. Several red-state Democratic Senators are running in close races and there is a good chance that Democrats could lose control of the Senate. This has caused some Democratic Senators and Democratic political advisors to caution the President to hold off on executive action.

Democrats fear that if the President makes a big announcement before the election it could turn off some moderates and swing voters in Southern states and would encourage angry conservatives to turn out to vote for Republicans. On the other hand, inaction by the President could result in Latinos staying home. However, the only Senate race with a large Latino population is Colorado’s.
There has also been some speculation that if the President acts, Republicans will try to defund the program through the budget process and end up shutting down the government. Republicans were blamed for shutting down the government last year and they would likely be blamed again, which could be a boon for Democrats. Of course, in this scenario cooler heads could prevail and Republicans could avoid a shut down.

Adding a further complication, Speaker Boehner has suggested that the House could take up immigration reform next year if the President does not take executive action. Of course, the House Republican Leadership is responsible for the failure of immigration reform to move forward this year and there has been no indication that the situation may be different next year. 

Among those Senators urging delay is Senator Bill Nelson (D-FL), who thinks the President should wait until after the election to announce any action. Other Senators have expressed concern about executive action. Senator Al Franken (D-MN) who is up for reelection said he has concerns about executive action and that immigration is a job for Congress. Angus King (I-ME), an independent who caucuses with the Democrats, opposes executive action. Majority Leader Harry Reid (D-NV) has not taken a position as to whether the President should act before or after the election. Rep. Luis Gutierrez (D-IL) opposes any delay by the President. ef

Farmworker Justice and other advocates for immigration reform are urging the President not to wait to take executive action. Last week, 145 protesters were arrested in a civil disobedience in front of the White House organized by CASA de Maryland. The protestors were demanding an end to the massive numbers of deportations. Advocates argue that thousands of immigrants are deported each week, some of whom could be eligible for Obama’s administrative relief program. While the President continues to promise action, how big that action will be and when it will take place – before or after the elections – are the salient issues. President Obama will be interviewed on “Meet the Press” on Sunday where he is sure to be asked about his plans for administrative relief for undocumented immigrants.
The Migration Policy Institute issued a brief this week, “Executive Action for Unauthorized Immigrants: Estimates of the Populations that Could Receive Relief,” which provides estimates of the numbers of undocumented immigrants who would be affected by various proposals for affirmative administrative relief.

Remembering Farmworkers This Labor Day

When it comes to farm labor, immigration policy is labor policy.  So this Labor Day, let’s hope that our collective advocacy persuades the President to create a generous program that helps many farmworker families. President Obama plans to grant some undocumented immigrants temporary relief from deportation and authorization to work.  Unfortunately, whatever the President does won’t be enough.  Only Congress can change the law.
Most of the nation’s 2.5 million farmworkers – at least 1.25 million and possibly 1.75 million -- are undocumented.
We as a nation permitted this to happen.  A broken immigration system allowed employers to hire new immigrants and deprived these productive workers of  immigration status.  Such vulnerable workers, especially absent a union, cannot negotiate  for job terms as forcefully as U.S. citizens and permanent residents.
“We have long waivered and compromised on the issue of migratory labor in agriculture.  We have failed to adopt policies designed to insure an adequate supply of such labor at decent standards of employment.  . . . We have used the institutions of government to procure alien labor willing to work under obsolete and backward conditions and thus to perpetuate those very conditions.”  Report of the President’s Commission on Migratory Labor (1951), p.23

The President should offer administrative relief.  And then Congress should offer a true legal immigration status and opportunity to earn citizenship  But that is not enough.
“Shall we continue indefinitely to have low work standards and conditions of employment in agriculture, thus depending on the underprivileged and the unfortunate at home and abroad to supply and replenish our seasonal and migratory work force?  Or shall we do in agriculture what we have already done in other sectors of our economy – create honest-to-goodness jobs which will offer a decent living so that domestic workers, without being forced by dire necessity, will be willing to stay in agriculture and become a dependable labor supply?”  Id.
We must empower farmworkers to bargain for better wages and conditions.  A starting point would be to end to discriminatory employment laws that deprive farmworkers of occupational safety protections, workers’ compensation, unemployment insurance, overtime pay, and other labor standards that apply to other workers.  Most important, we must help farmworkers organize to demand and win better treatment by their employers.
Some agricultural employers demand a new agricultural guestworker program.  They prefer guestworkers on restricted temporary visas compared to immigrants and citizens, who may have the freedom to switch employers, challenge illegal conduct, join a labor union, and vote in elections that lead to policy changes. We already have the H-2A guestworker program.  Many don’t want to use it because it has modest labor protections and government oversight. There is also a recent history of successful union organizing of H-2A guestworkers in North Carolina’s tobacco farms.
President Obama should issue a policy that allows the largest possible number of farmworkers and their family members to obtain immigration status and work authorization.  Then Congress should act to grant access to a true immigration status leading to citizenship.  Our challenge at Farmworker Justice is to help farmworkers gain access to any new program and help them organize to win a greater measure of justice in the fields and in their communities.


Worker Protection Standard Comment Period Ends Tonight: Tell the EPA to Protect Farmworkers

Today is the last day that the EPA will accept public comments on proposed revisions to the Worker Protection Standard (WPS) that provides the regulatory minimum for occupational pesticide exposure protection. Other workers who are exposed to toxic substances are covered by stronger protections, issued by the Occupational Safety and Health Administration (OSHA). The result is that the men, women, and children who produce the nation’s food are less protected from workplace hazards than other workers.

Although the proposed changes to the WPS will not address all the challenges in the fields, they are a step in the right direction to prevent pesticide illness. If the final rule includes our recommended improvements, the results will include greater awareness by farmworkers of the risks they face and preventative measures; and fewer pesticide-related injuries, illnesses, and deaths among farmworkers and their family members.

The agricultural industry is working hard to dissuade the EPA from adopting the rules that benefit farmworkers the most. Today, Politico reported the National Association of State Departments of Agriculture submitted comments that “call on the EPA to scrap the proposed changes.”

Farmworker Justice and other farmworker advocates have provided the EPA with extensive information to justify stronger protections for farmworkers. Your voice is needed to make sure farmworker safety does not take a back seat to the interests of agribusiness and pesticide manufacturers.

Please join Farmworker Justice and urge the EPA to protect farmworkers from pesticide exposure. You have until midnight tonight to submit comments.

Visit our website to use our model comments and submit by midnight tonight!

Farmworker Justice Immigration Update 8/4/2014

Over the last few weeks of its legislative session before a 5-week long summer recess, the House enacted several anti-immigrant measures, even as they failed to provide needed reforms for our broken immigration system.

The Humanitarian Crisis at the Border

Congress has begun its recess without providing any additional funding to the Obama Administration to deal with the crisis of unaccompanied minors from Central America seeking refuge in the U.S. The administrative funding to house and process tens of thousands of unaccompanied minors is expected to run out before the end of the Congressional recess and President Obama has requested Congress to authorize $3.7 billion of emergency supplemental funding. Last week, the Senate tried to pass a supplemental funding bill for $3.57 billion, but it was blocked in a vote of 50-44 (60 votes were needed). Friday, the House passed a bill to authorize $694 million in additional funding for the border but the amount falls far short of the needed appropriations. The bill includes harmful changes to the Trafficking Victims Protection Act that would reduce due process protections for the children, allowing the government to deport the children at a faster pace. The House took this action despite the fact that a broad majority of Americans see these children as refugees. Advocates are concerned that if the process of removal is expedited many children who are eligible for asylum or some other form of relief would be deported, possibly to their death. The bill is unlikely to become law as the Senate Democratic Leadership opposes these changes to current law and President Obama threatened to veto the bill if it comes to his desk. 

House Leadership once again caved to the extremist anti-immigrant minority in the House as part of a deal to get conservative House members to vote for the supplemental funding bill. In conjunction with the border funding bill, the House also voted on a bill to prevent any expansion of the Deferred Action for Childhood Arrivals (DACA) program and any new individuals from enrolling. Eleven Republicans voted against the bill, they are mostly from districts with a high percentage of Latino voters; and four Democrats, Representatives Mike McIntyre (NC), Rahall (WV), Collin Peterson (MN) and John Barrow (GA), voted for the bill. After House Republican Leadership killed any chance for immigration reform legislation this year, it adds insult to injury that they ended the summer legislative session by passing bills that would harm refugee children and that would allow DREAMers to be deported. 

The Child Tax Credit 

Last week, the House passed a bill that would expand the Child Tax Credit (CTC) to higher income families, while failing to extend an expiring provision of law that allows working poor families earning as little as $3,000 per year to access the CTC. The bill would also require that parents applying for the CTC (ACTC) have a Social Security number, effectively denying the credit to millions of poor families, most of which have U.S. citizen children. Again, the House managed to pass a bill that hurts immigrant families while failing to bring up any immigration reform legislation.

Affirmative Relief

Over 100 faith leaders and immigrant activists were arrested on Thursday in front of the White House protesting the President’s deportation policies. The groups are urging President Obama to go bold in his plans for administrative relief for undocumented immigrants. The groups also said that the government should focus on expanding resources for the unaccompanied children at the border fleeing violence in their home countries. The action was followed by additional immigration relief events, including an August 2 rally at the White House. 

Advocates have been meeting with Obama Administration officials to discuss proposals for an affirmative administrative relief program that would provide relief from immigration enforcement and work authorization for some sector of the undocumented population. Some reports have stated that the the administration is looking at providing relief for around 4 to 5 million undocumented immigrants. However, on Sunday a senior White House advisor, Dan Pfeiffer, called those numbers “uninformed speculation.” Farmworker Justice, in a letter to Secretary of Homeland Security Jeh Johnson and other officials, stressed the importance of affirmative immigration relief to farmworker families and the agricultural sector and the need for a broad, bold program to stay deportation and grant work authorization. We also described the unique circumstances farmworkers face so that they may be taken into account in creating the eligibility criteria and implementation plans in any affirmative relief program.

Agribusiness continues to push for immigration reform for agriculture. The American Farm Bureau Federation and the Partnership for a New American Economy released an advertisement that focuses on a labor shortage in agriculture; unfortunately, there was no discussion of the need to legalize the estimated 1.25 million undocumented farmworkers. While there is a shortage of documented farmworkers, there is not a national shortage of workers. There are pockets of oversupply of farmworkers in some parts of the country and other areas where the labor market is tighter. An affirmative relief program for undocumented immigrants that includes farmworkers and their family members would help stabilize the labor market and would better enable farmworkers and others to work without fear. Growers also have access to the unlimited H-2A temporary agricultural guestworker program, which has greatly expanded in recent years. Ultimately, however, Congress must legalize the 11 million undocumented immigrants in the U.S. and offer them the opportunity to become citizens. 

Workplace Raid in Florida Packing Plant

The urgent need for immigration reform is evidenced by a disturbing workplace raid that took place in a Naples, FL fruit and vegetable packing plant on July 16th. The Florida Insurance Fraud Division arrested 105 workers purportedly for using false identification. Reportedly the investigation was triggered due to a discovery that a worker who sought workers’ compensation had admitted to using false identification. It is unclear whether any of the other workers applied for workers’ compensation. According to one report, some of the workers are being charged with third degree felonies of identity theft and/or workers’ compensation fraud. According to the Florida Immigrant Coalition, some of the workers have been transferred to ICE custody. Others could be picked up and deported at a later date. The Florida Immigrant Coalition’s executive director, Maria Rodriguez, called the actions a cruel immigration raid. She stated, “It is no secret that many immigrant workers are forced to use invalid Social Security numbers, often with a wink and a nod from their employers, if they want to survive and feed their families. Employers knowingly rely on these workers for their own economic survival.” Beyond the devastating impact to this community, the raid may have a chilling effect on workers in the broader Florida immigrant community who may be entitled to benefits such as workers’ compensation. 

One last thing: Read Rep. Marcy Kaptur’s (D-OH) op-ed in the Nation on her visit with tobacco workers in North Carolina and the Farm Labor Organizing Committee’s work to improve their wages and working conditions.

Your support enables Farmworker Justice to help farmworkers win a more just immigration system.

Farmworker Justice Update 8/1: Hot Goods Hearing

Democrats and Republicans rarely find common ground in Congress these days, but apparently attacking Department of Labor’s(DOL) efforts to protect our nation’s vulnerable farmworkers is one area in which they agree. On Wednesday, the House Agriculture Subcommittee on Horticulture, Research, Biotechnology, and Foreign Agriculture held a hearing titled “To review the impact of enforcement activities by the Department of Labor on specialty crop growers,” in which the DOL’s Wage and Hour Administrator David Weil and Oregon Labor Commissioner Brad Avakian testified.

Under the hot goods provisions, goods produced in violation of the Fair Labor Standards Act’s (FLSA) minimum wage, overtime and child labor provisions are considered “hot goods” because they are tainted by the labor violations and pollute the channels of interstate commerce. The FLSA makes it illegal for anyone to transport, ship, deliver, or sell “hot goods” in interstate commerce. Section 17 of the FLSA authorizes the Department of Labor to seek a court order forbidding anyone from placing tainted goods into the stream of interstate commerce (a “hot goods order”). Hot goods orders are a powerful remedy against illegal practices that harm low-paid workers who cannot afford to wait to be paid properly. To read more about the hot goods provisions, see our fact sheet.

The Horticulture, Research, Biotechnology, and Foreign Agriculture subcommittee is led by members from farming districts: Chairman Austin Scott (R-GA) and Ranking Member Kurt Schrader (D-OR). Both of these members seem to have a bullseye on farmworkers. Rep. Schrader has introduced two bills to limit farmworkers’ rights to healthcare and labor protections. Rep. Scott has also introduced legislation to defund the Legal Services Corporation just days after the legal services program in Georgia announced that it had assisted an EEOC determination that a Georgia grower in Scott’s district was discriminating against US workers in favor of H-2A agricultural guestworkers.

Rep. Schrader’s vendetta against DOL on behalf of “my” farmers was clear in the many, many, many questions he asked. Many of the questions were related to a 2012 case in which DOL invoked the hot goods provisions against 3 blueberry growers in Oregon for failure to pay the minimum wage to many workers and for violation of child labor laws. Although the cases settled, two of the growers sought to vacate the settlement agreements almost a year later by claiming that their due process rights had been violated and they had been coerced into accepting the settlements due to the threat of a hot goods injunction. A federal district judge overturned the settlement agreements and reopened the case. DOL has requested permission to appeal the decision; the case is still pending.

With the sole exception of Wage and Hour Administrator Weil, the hearing lacked any consideration of the farmworker perspective, including the extensive labor law violations in agriculture or the experiences of the farmworkers in the controversial Oregon cases. Instead, the underlying sympathies and assumptions seemed to be that contrary to widespread statistics, growers are not really violating the law, and thus, are the real victims. There were many questions about how the poor beleaguered farmers will recoup their attorneys’ fees, legal costs, etc.

Of course, not all agricultural employers break the law. In fact, the primary purpose of the hot goods provisions is to protect law-abiding employers from being competitively undermined by unscrupulous employers seeking unfair business advantage by unlawfully lowering their labor costs.

The hearing sent a clear message to the Obama Administration to curtail enforcement of the hot goods provision in agriculture. We urge the DOL to continue to enforce the FLSA hot goods provision to maximize its limited enforcement capabilities, to incentivize compliance with the law, and to ensure that all workers receive their fair day’s pay. Representatives Scott and Schrader have filed a bill, HR 1387, that would exclude perishable agricultural goods from the hot goods provisions of the FLSA. Congress should end the discrimination against farmworkers in our nation’s labor laws, not seek to expand the exclusions.


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