Immigration and Labor Rights

Farmworker Justice Immigration Update, 12/12/16

Presidential Transition Appointments

DHS Secretary
General John Kelly has been nominated by President-Elect Trump to be the Secretary of Homeland Security, a position that could have a far-reaching impact on the nation’s immigration policy. Kelly, who retired from the military earlier this year, led the U.S. Southern Command, which oversees military operations in much of Central and South America. Though he worked extensively on cross-border issues in this role, much is still unknown about his views on specific immigration policies and how his military experience will translate to leadership in a civilian agency. Whomever Kelly eventually chooses to direct the different sub-agencies within DHS will likely play a key role in shaping the agency’s immigration policies and enforcement actions.

DOL Secretary
President-Elect Trump has named fast-food executive Andy Puzder as his nominee for Labor Secretary. Puzder favors repealing workplace regulations and has a record of pro-business and anti-worker values. Puzder is the CEO of CKE Restaurant Holdings, the parent company of the Carl’s Jr. and Hardee’s fast-food franchises, which are currently the subjects of various ongoing DOL investigations. Puzder has also been a vocal opponent of raising the minimum wage and providing overtime pay, and has advocated automation as a way of avoiding financial and legal obligations to workers. He has also expressed support for guestworker programs, appearing to prefer temporary work visas over the opportunity for workers to obtain immigration status. FJ is currently collaborating with other organizations across the country to call for a thorough investigation of Puzder’s past labor practices and possible conflicts of interests. We are committed to ensuring that the position of Labor Secretary is held by someone whose first priority is protecting the rights of workers.

Labor Transition Team
Another controversial member of President-Elect Trump’s DOL transition team is Veronica Birkenstock, the president of a recruiting agency that specializes in connecting employers with temporary guestworkers from Mexico and other countries. Guestworker programs are rife with abuse of both U.S. workers and foreign workers on temporary work visas. Though Ms. Birkenstock’s firm specializes in the use of H-2B visas, the use of recruiting agencies has proved problematic in the H-2A context as well.

UPDATE: Curiously, Birkenstock’s name was removed from the transition team website, as reported by a group that referred to her as a recruiter for “cheap temporary foreign workers.”

H-2A Visa Use May Increase amidst Immigration Uncertainty
Many employers are concerned that a crackdown on illegal immigration by the Trump administration could affect their ability to retain their workforces. Farmers have been increasingly turning to the H-2A guest worker program for their temporary labor needs, with the number of applications for H-2A workers growing substantially during the last decade. In the South, for example, demand for farm labor continues to grow, with a majority of these workers entering through the H-2A program. In Florida, approximately half of the state’s strawberries are harvested by H-2A workers, while Pennsylvania fruit growers are increasingly turning to the H-2A program as well. This trend of increasing use of the H-2A program will likely continue amidst the current uncertainty about Trump’s immigration policies.
If use of the program does increase, there will be enhanced pressure on the already limited resources available for investigation and enforcement by government agencies. Unlike the H-2B program, the H-2A program does not have a cap on the number of visas that can be issued per year, which means there are no limits to the program’s potential increase.
Employers will also likely continue to advocate for a scaling back of the requirements and protections present in the program. A recent Civil Eats article quoted FJ President Bruce Goldstein on his concern that a Trump administration could change the current guest worker program in a way that erodes worker rights. Specifically, he stated that the Trump Department of Labor adopt policies “slashing wage rates and reducing government oversight.” FJ will continue to ensure that any discussion of guest worker programs includes farmworker voices and will oppose anti-worker changes.

What Will Happen to “Dreamers” Deferred?
On the campaign trail, President-Elect Trump pledged to revoke President Obama’s 2012 deferred action directive, DACA, which gave undocumented immigrants brought to the U.S. as children the opportunity to study and work legally in the country. There are currently more than 740,000 “Dreamers”, with about 7,000 additional applications for the program each month. Since his election, Trump has been facing mounting pressure from Democrats and some Republicans to keep the program in place. There are also concerns that if the program is ended, the personal information submitted by Dreamers may be used to initiate deportation proceedings against them. There is widespread fear in immigrant communities about threat of deportations.

However, in a sign that he may be re-considering his pledge, Trump recently told a Time magazine interviewer that he’s “going to work something out” for Dreamers. He added: “They got brought here at a very young age, they’ve worked here; they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”

New Legislation Introduced. On Friday, Senators Lindsey Graham and Dick Durbin introduced bi-partisan legislation that would extend protection from deportation as well as continued access to work permits for Dreamers for three years in the event the Trump administration revokes DACA. The legislation would also expand the number of Dreamers affected and protect personal information from being used to target their parents for deportation. The bill is named the “Bar Removal of Immigrants who Dream and Grow the Economy” or BRIDGE Act.

We are hopeful that President-Elect Trump will consider the devastating effects that revoking this program will have on both immigrant communities and the broader communities in which these young people live and work. The bi-partisan efforts underway to protect the program are a testament to its significance.

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Farmworker Justice Immigration Update, 11/22/16

Impact of the Presidential Election on Farmworker Communities
Many farmworkers and their families face an uncertain fate due to the results of the U.S. presidential and Congressional elections. There are nearly two and a half million seasonal farmworkers in the U.S., at least 50% of whom are believed to be undocumented immigrants, mostly from Mexico. Throughout his campaign, Donald Trump invoked rhetoric disparaging immigrants, including those from Mexico. Trump also infamously proposed to build a border wall paid for by the Mexican government, to end DACA, and to engage in mass deportations. As discussed in this Huffington Post piece, President-elect Trump’s words have instilled fear among immigrant farmworkers and their families.


See also, these pieces regarding the election’s potential effects in the states of Washington, New Mexico and Idaho.


Post-Election Uncertainty. It is not yet clear whether and how the Trump Administration will carry out these dire threats against immigrants. Trump’s mass deportation plan and border wall are unrealistic and even the Trump campaign has acknowledged that his campaign promises may not be put into place as described. Some information can be gleaned from a recent interview on “60 Minutes,” where Trump stated that he plans to deport 2-3 million undocumented individuals who are “criminal[s] and have criminal records, gang members, drug dealers…” He further noted that after securing the border “and after everything gets normalized, we’re going to make a determination on the people that they’re talking about — who are terrific people.” Trump’s advisors have also indicated that he will likely reinstate workplace raids, which would terrorize immigrants in the workplace.


Agribusiness Concerns and Goals. Clearly, immigration enforcement will impact employers who depend on experienced, hard-working undocumented immigrants. Several media reports have suggested that growers will seek to reduce regulations in the H-2A program to ease business access to guestworkers. We’ve seen this before and know that what the growers seek is reduced government oversight and sharp cuts to wages and other worker protections. The Bush Administration’s H-2A regulatory changes diminished government oversight, lowered wages and reduced protections leading to sharp wage cuts and other financial losses for farmworkers. Prior to the Obama Administration’s restoration of the earlier, Reagan-era regulations, the overall loss and increased costs for H-2A workers in 2009 as a result of the Bush regulations was roughly $121.2 million dollars in lost wages, $4.7 million in unreimbursed transportation costs and the payment of approximately $17.3 million in visa and border crossing fees. Farmworkers cannot afford to shoulder these costs. H-2A workers and the U.S workers who work alongside them already suffer far too many abuses; we need to strengthen protections and enforcement, rather than to cut them. In a video message released yesterday, Trump stated that as one of his first actions, he intends to “direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker.” The H-2A agricultural guestworker program contains labor protections that are intended to prevent displacement and undermining of the wages and other labor standards of U.S. farmworkers due to the hiring of vulnerable H-2A visa guestworkers who are dependent on their employers for their continued ability to work in the U.S. There are extensive violations of both U.S. workers’ and H-2A guestworkers’ rights that DOL must investigate and remedy.


The need for meaningful solutions. One-sided H-2A reform does not address the situation of the many undocumented farmworkers contributing valuable work to our food system. Some growers have also recognized the need for broader reform that includes legalization for their workers, as suggested in the Huffington Post piece above. We do not yet know how the Trump administration and Congress will move forward to address these issues. Growers did have a voice in Trump’s campaign, with several grower representatives, including Tom Nassif, President of the Western Growers Association and Chuck Conner, CEO of National Council of Farmer Cooperatives on Trump’s agricultural advisory committee. Chuck Conner is also rumored to be a possible pick for the Secretary of Agriculture. In the past they have supported legal status for undocumented immigrants as part of compromise immigration legislation, but have also insisted on major changes to the H-2A program or its replacement future agricultural guestworker programs.


Developing Trump Administration Brings Many Concerns
President-elect Trump’s transition team and picks for key positions are reinforcing his hard-line message on immigration. His immigration transition team includes Kansas Secretary of State Kris Kobach who is notorious for his anti-immigrant views and role in pushing anti-immigrant legislation in states such as Arizona. Last week,President-Elect Donald Trump announced that he has chosen Alabama Senator Jeff Sessions (R) as his pick for the position of Attorney General, a position that must first be confirmed by the U.S. Senate. Farmworker Justice is deeply concerned about the selection of Sessions, who has long been a vicious opponent of immigration and reasonable immigration reform and has a history of racially insensitive comments. Other Administration picks, such as Stephen Bannon as chief of strategy, also send troubling messages about the goals and direction of the Trump Administration in terms of its respect for America’s diversity and respect for human rights.


Our Work Ahead
Arturo Rodriguez, President of the United Farm Workers, provides an inspiring reminder, “We have confronted and overcome political adversity many times before. … As the challenges increase so does our commitment to and determination to afford all farm workers and low-income working families the opportunities and respect they deserve.” Indeed, farmworker organizations have faced adversity before. During its 35 years, Farmworker Justice has fought against adversity in Administrations and Congress many times.

Farmworker Justice will track and report on developments at the intersection of immigration policy and labor rights. Collaborating with our partners, we will fight against any efforts to reduce farmworkers’ protections and to harm farmworker communities. We will fight for meaningful, fair immigration reform. In our watchdog role we will monitor immigration enforcement and labor rights enforcement by government agencies and intervene as needed. Through our extensive relationships with farmworker organizations around the country, we will help farmworkers address the fear and uncertainty this election has instilled, and protect the rights and dignity of the farmworkers who cultivate, harvest and process the nation’s food.

The challenges faced by farmworkers should be especially present in our thoughts as we celebrate the national holiday of Thanksgiving this week. As we express gratitude for the bounty on our tables, it is worth remembering that our meals are made possible by the labor and contributions of our nation’s farmworkers. Your support enables us to provide the services that farmworkers and their organizations seek from Farmworker Justice. We ask for your support. If you make a donation to the Shelley Davis Memorial Fund, it will be matched dollar for dollar up to $12,000, so please take advantage of this great opportunity. Thank you. Have a wonderful Thanksgiving. 

Resources for DACA recipients and immigrant communities

The surprising presidential election result poses serious threats to the wellbeing of farmworkers – the people who labor on our farms and ranches – and their family members. We are united with the many undocumented farmworkers and their families who are fearful of next possible steps on immigration policy under the Trump Administration. Farmworker Justice will continue assisting farmworker organizations throughout the country to limit the potential damage from the new Administration and Congress. We will be fighting against President-elect Trump's proposed deportations and other harsh immigration policies. We also will be closely watching the H-2A program to protect against attacks on its modest protections.

For now, we are carefully monitoring developments in the upcoming Trump Administration, including any indications on what immigration, labor and other key policies will be. For those who have DACA or are DACA eligible, we have included resources for DACA and potential DACA recipients and immigrant communities post-election. Thanks to the UFW Foundation and ILRC for preparing these materials. The UWF Foundation's materials are available here and ILRC's talking points can be found here. Both organizations advise those who are eligible for DACA renewal to do so promptly as it is unclear what will happen to applications not completed by January 20. In addition, we also agree with the widespread recommendation for potential new DACA applicants that it is better not to apply now but instead to wait until we learn more about the incoming administration's plans for DACA. The UFWF has also prepared a Know Your Rights piece for individuals who would like to know more about their rights during enforcement actions.

Best, Adrienne
 

Farmworker Justice Immigration Update 10/28/16

Obama Administration’s Petition for Rehearing to the Supreme Court for the DAPA/DACA+ case Denied
Earlier this month, the U.S. Supreme Court announced that it will not re-hear the DAPA/expanded DACA case in the current term. The Department of Justice had filed a motion in July asking the Court to re-hear the case once a ninth justice was seated.


While we are disappointed by this decision, we remain committed to working with the next Administration and Congress to ensure immigration relief for undocumented farmworkers, their communities, and the many other aspiring Americans in our country. Depending on election results, there may be opportunities for immigration reform legislation that provides a path to citizenship for the 11 million undocumented individuals living and working in our country. We will also be exploring additional options for administrative relief for undocumented farmworkers and family members.


Migration Policy Institute Farm Labor Panel includes Farmworker Justice’s Bruce Goldstein
The Migration Policy Institute on October 20 convened a panel of experts reporting on developments in the farm labor force and agriculture and their impact on immigration issues. Farmworker Justice President Bruce Goldstein spoke as a commenter on the presentations.


Philip Martin, an agricultural labor economist at UC-Davis, discussed recent trends in employment and demographics of farmworkers using data from the USDA and the Department of Labor’s National Agricultural Workers Survey (NAWS). One of the highlights he noted is that the likelihood of a farmworker being a single, mobile, young man is much lower than in the past. According to the 2014 NAWS data, 84% of farmworkers are settled in one community compared to 45% in 2000. Additionally, more farmworkers are married with children, many of whom were born in the U.S. The share of farmworkers accompanied by at least one family member went from 37% in 2000 to 61% in 2014. Average age of farmworkers also increased from an average age of 33 in 1991 to 38 in 2014. Prof. Martin also cited California showing that more farmworkers are brought to farms by farm labor contractors than those who are hired directly.


Prof. Martin discussed how growers react to perceived labor shortages, referring to four strategies growers may employ that could indicate a tightening of the labor market. These include increasing worker satisfaction; stretching the current workforce to increase productivity by adjusting the way crops are grown or using mechanical aids; substituting workers entirely with machines; and supplementing the work force, primarily by hiring H-2A guestworkers. Of note, Prof. Martin reported that growers generally (there are exceptions) have not been increasing wages substantially because they do not believe it attracts new workers or retains existing workers. Since 2005, there has been a sharp uptick in the use of the H-2A guestworker program nationally. California, led by the vegetable industry, has become a top-5 user of the H-2A program but it is still filling only a small percentage of that state’s farm jobs.
Daniel Carroll, who oversees the NAWS, also discussed demographic trends. Nationally, 67% of farmworkers in 2014 were born in Mexico compared to 54% in 1991. In California, 89% were born in Mexico. The unauthorized share of the farm labor force has jumped from 14% in 1991 to roughly 46% in 2014 (note that workers are self-reporting their immigrations status during the interview so this number may underrepresent the actual number of undocumented farmworkers). In 1991, a large share of farmworkers were either citizens or received legalization through the 1986 IRCA bill, while today more farmworkers have access to legal status through family visas. With fewer farmworkers migrating and immigration across the U.S. – Mexico border subsiding, the share of farmworkers who are foreign-born and arrived very recently dropped from 22% in 2000 to 2% in 2014.


Tom Hertz, an economist at the USDA, focused his remarks on farmworker wages and whether we are experiencing a farm labor shortage. He noted that the estimated number of Mexican-born farmworkers in the U.S. has stayed roughly the same since 2007, while the unemployment rate for all farmworkers in 2014 was not below pre-recession levels. However, he noted that real wages in agriculture are rising faster than in other industries while the H-2A program is seeing steady growth – both pointing to a tightening of the labor market.


Bruce Goldstein responded to the presenters by laying out the factors that don’t always show up in the data. While wages for farmworkers may be rising faster than for workers in other industries, he noted that the increase is modest in real terms and started from a very low point. He said that regardless of possible local labor shortages, the wages and benefits would have been expected to have increased substantially if there really were major labor shortages. Farmworkers make only about 56% of the average U.S. wage, and generally receive no fringe benefits such as health insurance or paid time off. The fact that at least half the workforce is undocumented drags down the bargaining position of all farmworkers with their employers.


Addressing solutions, Goldstein stressed the importance of engaging retailers and consumers in an effort to improve wages and working conditions in the fields. Prof. Martin has shown that a 40% increase in wages for farmworkers would only translate to an extra $21 annually in grocery costs for a family (if the extra cost were passed on to farmworkers). Corporate responsibility projects in the food supply chain hold potential for increasing productivity and sharing the benefits with farmworkers.


Regarding the increased use of farm labor contractors by farm operators, Goldstein noted that it is absolutely necessary that the grower and contractor be treated as joint employers. Growers should not be able to insulate themselves from potential liability under labor and immigration law by outsourcing the risk to labor contractors. There must be shared responsibility to prevent wage theft, peonage, child labor and other abuses.

Goldstein stressed that immigration reform is critical to improving the lives and working conditions of current undocumented farmworkers and their family members. On the issue of worker visa programs, Farmworker Justice believes that if there are legitimate future labor shortages, new arrivals should be granted immigration status and the accompanying economic and democratic freedoms on which this country is based. If compromise on immigration policy necessitates a worker visa program, such a program should be based on true and demonstrable labor shortages and should offer workers job portability, strong and equal labor protections, the ability to live with their families, and a path to citizenship.


White House Latino Policy Summit Addresses Farmworkers and Immigration
On October 12, the White House Latino Policy Summit featured presentations by several speakers from the National Hispanic Leadership Agenda (NHLA), including Farmworker Justice’s Bruce Goldstein, who co-chairs the NHLA Economic Empowerment and Labor committee. Immigration and labor issues were among the issues discussed before an audience that included White House and federal agency officials.


Department of Labor Hosts Hispanic Heritage Month Conversation
In honor of Hispanic Heritage Month, U.S. Secretary of Labor Tom Perez moderated a conversation with United Farm Workers President Arturo Rodriguez and Julie Chavez Rodriguez, Special Assistant to the President of the United States, who is also the daughter of Mr. Rodriguez and the granddaughter of Cesar Chavez.


At the October 13 event, Secretary Perez discussed how for far too long, comprehensive immigration reform has been merely a conversation while millions of peoples’ lives are being affected. Mr. Rodriguez mentioned the numerous encounters he has had with people who were unable to go home to attend a loved one’s funeral. Ms. Rodriguez explained the unique window of opportunity that will open with the next Administration, as an unusual coalition of allies ranging from law enforcement to churches and veterans are all pushing for comprehensive immigration reform.


Secretary Perez asked about the challenges facing farmworkers and what people can do to help them. Mr. Rodriguez said that elections really matter, and having the right people in place who make decisions that affect farmworkers is very consequential. This is especially true in light of the landmark legislation passed in California that will gradually bring equity in overtime pay to the state’s farmworkers. Ms. Rodriguez said that we need to be looking at lessons from the organic food movement, and how consumers are willing to support practices that align with their values. Secretary Perez added that corporate social responsibility projects such as the Equitable Food Initiative, of which Farmworker Justice is a founding board member, are part of a growing movement towards conscious consumerism.

Farmworker Justice
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October 28
 

Farmworker Justice Immigration Update 9/30/16

Historic California Overtime Legislation
On September 12, California Governor Jerry Brown signed historic legislation that gives farmworkers the same overtime protections as all other workers in the state. This is a long overdue victory for farmworkers in California, and one that we hope can lead Congress to end the discriminatory treatment of farmworkers under our federal labor laws. The exception of farmworkers from the federal overtime law passed in 1938 stems from historical discrimination against African American workers, and it is time for employers in agriculture to operate under the same rules that apply to employers in other sectors, including those with seasonal jobs. Gaining the political will in Congress may depend on additional states first ending their discriminatory laws. One might think that the California growers would not want to compete against growers in other states who have lower labor costs due to exemptions from labor protections.

To read more, see this blog post.

Familias Unidos por la Justicia Wins Union Vote, Will Represent Farmworkers at Sakuma Bros.
A labor dispute spanning three years at Sakuma Brothers Farms in Washington State has reached a new stage with the berry farm’s workers voting overwhelmingly to form a union with Familias Unidos por la Justicia as their representative.

Farmworker union elections are not protected or governed by the National Labor Relations Board, which is just another example of discriminatory employment laws faced by farmworkers. In practice, the lack of a formal structure for union representation elections makes farmworker union campaigns incredibly difficult. Yet, in spite of this obstacle, these workers were able to mount an enduring and effective campaign to pressure their employer to hold an election. Although by striking they won some important gains, now the union and the company, if it acts in good faith, will negotiate a comprehensive agreement. The Union, which is led by immigrants from indigenous communities in Mexico, ended its boycott against Driscoll’s strawberries, which sells Sakuma’s berries.

FJ President Bruce Goldstein Featured at Food Tank’s Farm Tank Conference
Before heading to speak at the first annual Farm Tank Conference - Sacramento, Farmworker Justice President Bruce Goldstein sat down with Food Tank to answer 10 questions about food and agriculture. See his responses to the biggest challenges and opportunities facing farmworkers and the future of agriculture here. Bruce was a panelist at the conference, which included speakers and attendees from many corners of the food and agriculture systems.
It is critical that the perspectives of farmworkers and their advocates be heard in forums such as the Farm Tank Conference. Far too often, conversations around sustainability in agriculture overlook the important role farmworkers play in our food system.

Washington Post op-ed on Visa Reform for Dairies
The executive director of the National Immigration Forum, Ali Noorani, recently published an op-ed in the Washington Post calling for an update to our various systems for awarding visas. Farmworker Justice is well-known for its support for progressive immigration reform but is concerned about the focus of the op-ed. Specifically, he mentions the need for year-round labor in the dairy industry and how this makes employers ineligible to bring in workers through the H-2A guest worker program, which is only for seasonal jobs.

The dairy industry plays an important role in our agricultural economy and our nation’s health. But the fact remains that it is a year-round industry and most dairy workers work on large farms. Granting temporary visas to fill potential labor shortages is an inappropriate solution. The industry can and should be doing more to lift wages, benefits, and working conditions to attract and retain workers. In addition, any workers brought in from outside the U.S. to fill actual shortages should be given legal immigration, not guestworker, status and put on a path to citizenship.

Fox News Immigration Poll
An August 2016 poll from Fox News shows that 77% of registered voters support granting legal status to those immigrants who are undocumented, while only 19% favor deporting “as many as possible.” This is an encouraging trend; in July of 2015, 30% favored mass deportations.
While the language of the poll question does not delineate between a path to citizenship and other means of granting status, it is clear that the vast majority of the American public is in favor of comprehensive immigration reform.

Although it is highly unlikely that Congress will act before the election or during the lame duck period, it is paramount that the next Congress and Administration prioritize a path to citizenship for the undocumented. In the meantime, undocumented farmworkers and temporary foreign workers under the H-2A program, which is expanding, are vulnerable to unfair and illegal employer practices. We must continue to help these workers improve conditions on farms.

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California Farmworkers Finally Achieve Overtime Pay Equity

Farmworkers in California achieved a major victory on September 12, 2016, when Governor Brown signed into law overtime protections for farmworkers. We congratulate the United Farm Workers, their allies and the California leaders who worked hard to achieve this historic success. Importantly, we also thank all of the farmworkers who took time out of their busy schedules to fight for this victory.

The passage of the overtime law, AB 1066, ensures farmworkers will have an equal right to overtime pay and continues the process of reducing discrimination in employment laws against agricultural workers. Rooted in discrimination against African American workers, the Fair Labor Standards Act excludes farmworkers from overtime and other protections. During the past forty years, California has gradually added farmworkers to employment-law protections from which they have been excluded by Congress and other state legislatures.

Under the new law, California farmworkers will be entitled to time-and-a-half pay for working more than 8 hours a day and 40 hours in a week in agriculture. The bill phases in overtime pay over a period of 4 years beginning in 2019; for employers with 25 or fewer employees, the phase-in will be delayed by three additional years. Double time pay will be required for 12 hours of work a day beginning in 2022. Under federal law, farmworkers and their employers are excluded from overtime pay; and under prior California law, overtime need only be paid if farmworkers work more than 10 hours a day or 60 hours in a week.

For decades it has been recognized that businesses which require more than forty hours of work in a week should pay a premium wage. Overtime pay offers extra compensation to workers but also acts as a deterrent against employers’ imposition of excessively long work days and weeks. Consistent, excessive hours can be physically damaging, especially to workers who make their careers in strenuous jobs. Farm work has long been recognized as physically difficult, strenuous work. Excessive hours interfere with time needed to raise children, care for elderly parents, take classes, enjoy leisure time and get needed rest. Farmworkers’ low pay means that they usually cannot afford to pay for extended daycare hours for their children or other services that are needed to address the effects of working excessive hours.

Overtime pay has been controversial and opposed by many businesses as too costly and as being globally anti-competitive for over one hundred years. Yet, most people in working class jobs have been covered by time-and-a-half pay since passage of the Fair Labor Standards Act of 1938. Complaints by agricultural employers are no different from complaints by employers in other occupations who face increases in the minimum wage or overtime requirements. The exception for agriculture was never fair and we commend California for moving away from the discriminatory history experienced by farmworkers to grant overtime pay to agricultural workers.

The U.S. Congress needs to learn a lesson from California and end numerous exclusions of farmworkers from labor protections that apply to other workers. California is the most successful agricultural production state; about one-third of the nation’s farmworkers are employed there. Not only do farmworkers outside California deserve an end to discrimination in labor laws, but agricultural businesses in California should not have to compete with growers that save money on labor costs because the federal law and their state laws discriminate against farmworkers in employment laws. As UFW President Rodriguez said, AB 1066 "would give license to farmworkers in other states fighting for the same thing.” We all want to feel good about the food we purchase and consume, and the continuing discrimination in employment laws against farmworkers – the people who produce our food – perpetuates a stain on our food system that should be eradicated.
 

Farmworker Justice Immigration Update: September 6, 2016


California legislature passes OT bill for farmworkers, now Governor Brown must sign bill to help end discrimination against farmworkers
On August 27, farmworkers achieved a significant victory when the California legislature passed a bill that over several years would phase in time-and-a-half pay for working more than 8 hours a day and 40 hours in a week in agriculture. Under federal law, farmworkers and their employers are excluded from overtime pay; and under current California law, overtime need only be paid if farmworkers work more than 10 hours a day or 60 hours in a week. We congratulate the coalition that won this legislative battle after a defeat just weeks earlier. The United Farm Workers brought many farmworkers to the state capitol, Sacramento, to demonstrate their support for equal treatment and overtime pay.

The bill now awaits Governor Jerry Brown’s signature to become law. Governor Brown should sign the bill to provide farmworkers with this important benefit and to continue the process of reducing discrimination in employment laws against agricultural workers. Overtime pay for farmworkers: it’s time. To read more, see our blog post here.

California grower ordered to pay $2.4 million for violations of H-2A program rules
Fernandez Farms, Inc., a California-based strawberry farm, and its president Gonzalo Fernandez, were fined $2.4 million by an Administrative Law Judge for violations of the H-2A program rules. The order included roughly $1.1 million in payment to the workers for unlawful kickbacks, failure to provide free housing, multiple wage violations, threatening and coercing H-2A workers, and discriminating against US workers, among other violations; and a civil money penalty of almost $1.3 million for the H-2A violations. In addition, Fernandez Farms and its president were barred from participation in the H-2A program for the maximum period of three years. We applaud DOL for their investigation despite continued resistance from Fernandez and his family members. We also commend the work of CRLA and CDM for their support to the impacted workers and the DOL.

While the ALJ decision is a victory for the impacted workers, the case is deeply troubling for the abuses it reveals. As we have shared in prior updates, H-2A workers are extremely vulnerable to abuse and exploitation because they can only remain and work in the U.S. for the one employer who brings them here. Fernandez, for example, felt that he could intimidate his H-2A workers into silence during the Department of Labor investigation. This case illustrates the kinds of abuses we can expect to see more of as the H-2A program use continues to grow rapidly. As DOL trial attorney Abigail Daquiz notes, “We’re finding that in lots of different ways, employees are having to pay that [transportation and recruitment costs] back, being forced to kick it back.” The H-2A program protections and DOL’s oversight are important tools to try to prevent worker abuse, but more is needed. Agribusiness complaints about the H-2A program “bureaucracy” and overly burdensome rules demonstrates their interest in reducing even these minimum protections.

And while we commend the maximum debarment for Fernandez Farm and its president, we are troubled that Fernandez’s sister, Celia, a former supervisor at Fernandez Farms who was accused of involvement in the case, has been approved to receive H-2A workers this year. According to the LA Times article, her farm is a newly incorporated company at the same address as the former Fernandez Farms, which filed for bankruptcy. DOL must do more to debar bad actors and their successors to send a message that growers must comply with the law in order to have access to the H-2A program.

Donald Trump much anticipated speech on immigration more of the same anti-immigrant rhetoric
In a highly promoted speech on immigration following weeks of hints that he may soften his position on immigration, Trump continued to invoke anti-immigrant rhetoric and repeated his call for a border wall paid for by Mexico. Trump’s proposals for immigration would only worsen our broken immigration system, including by ending sanctuary cities, ending President Obama’s DACA and proposed DAPA programs, yet failing to provide a realistic and humane solution for the millions of hard-working aspiring Americans. We are deeply troubled by Trump’s continued broad brush characterization of undocumented individuals as criminals and his lack of respect for our nation’s diversity. We will continue to monitor and report on both presidential candidates’ positions on immigration.
 

Ending Discrimination Against Farmworkers: Gov. Brown Should Sign the California Overtime Pay Bill

California during the past forty years has gradually added farmworkers to employment-law protections from which they have been excluded by Congress and state legislatures. On August 27, the California legislature passed a bill that over several years would phase in time-and-a-half pay for working more than 8 hours a day and 40 hours in a week in agriculture. Under federal law, farmworkers and their employers are excluded from overtime pay; and under current California law, overtime need only be paid if farmworkers work more than 10 hours a day or 60 hours in a week. Governor Jerry Brown should sign the bill to provide farmworkers with this important benefit and to continue the process of reducing discrimination in employment laws against agricultural workers.

We congratulate the coalition that won this legislative battle after a defeat just weeks earlier. The United Farm Workers brought many farmworkers to the state capital, Sacramento, to demonstrate their support for equal treatment and overtime pay. A new compromise was achieved and was passed despite the strenuous opposition of agribusiness groups.

For decades it has been recognized that businesses which require more than forty hours of work in a week should pay a premium wage. Overtime pay offers extra compensation to workers but also acts as a deterrent against employers’ imposition of excessively long work days and weeks. Consistent, excessive hours can be physically damaging, especially to workers who make their careers in strenuous jobs. Excessive hours interfere with time needed to raise children, care for elderly parents, take classes, enjoy leisure time and get needed sleep. Farmworkers’ low pay means that they usually cannot afford to pay for extended daycare hours for their children or other services that are needed to address the effects of working excessive hours.

Overtime pay has been controversial and opposed by many businesses as too costly and as being globally anti-competitive for over one hundred years. Yet, most people in working class jobs have been covered by time-and-a-half pay since passage of the Fair Labor Standards Act of 1938. The exception for agriculture was never fair. It’s long past the time to grant overtime pay to agricultural workers.

Gov. Brown should sign the bill, and then Congress should apply overtime pay to agricultural work and end other discriminatory employment-law provisions. California is the most successful agricultural production state; about one-third of the nation’s farmworkers are employed there. Not only do farmworkers outside California deserve an end to discrimination in labor laws, but agricultural businesses in California should not have to compete with growers that save money on labor costs because the federal law and their state laws discriminate against farmworkers in employment laws.

We all want to feel good about the food we purchase and consume, and the continuing discrimination in employment laws against farmworkers – the people who produce our food – perpetuates a stain on our food system that should be eradicated. Overtime pay for farmworkers: it’s time.


 

Farmworker Justice Immigration Update 8/17/16

Farmworkers in the News

In early August, the Partnership for a New American Economy launched a media blitz, releasing reports for each state and the District of Columbia highlighting the positive economic impact of immigrants. The group, convened by former New York City Mayor and billionaire Michael Bloomberg, supports legislation to create a path to citizenship for undocumented immigrants but also emphasizes guestworker programs. The partnership is a coalition of Republican, Democratic and Independent mayors and business groups, including the American Farm Bureau Federation, Western Growers Association, and United Fresh Produce Association.

The reports provide valuable state-level data on the growing immigrant populations, which industries have predominantly immigrant workers, the tax contributions of immigrants and the numbers of immigrant-run and first-generation American run businesses. We generally applaud these efforts but note that the reports only provide the business perspective on immigration.

For example, the reports praise our country for being a nation of immigrants and highlight that immigrants and their children start businesses, often in higher percentages than the general population. However, many of the persons profiled in the reports also call for a “workable” guestworker program for agriculture. But a guestworker program is not an immigration program, in that it requires participants to maintain permanent residence in their countries of origin and generally does not allow them to bring their families. Workers are tied to one industry, typically to a single employer, and lack the freedom and opportunity that true immigrants with lawful permanent residence have. Guestworkers usually have no path to a green card. By design these temporary visa workers and their children will not become American entrepreneurs, homeowners, members of their communities or voters. They are also less able to advocate for better workplaces or join labor unions due to their temporary, non-immigrant status.

Our opposition to guestworker programs is based on our extensive experience assisting workers under the H-2A program and its predecessor and our knowledge of the legacy of the Bracero program and parallel programs in the U.S. and elsewhere. These programs uniformly expose the same flaws, including exploitation of guestworkers’ vulnerability and negative impacts on the wages and working conditions of domestic farmworkers.
Farmworker Justice wholeheartedly agrees that a path to immigration status and citizenship for the 11 million undocumented immigrants in this country would benefit our economy, our communities and all workers. Immigration reform should provide an opportunity for all farmworkers, regardless of their immigration status, to improve their wages and working conditions. Any future visa program for farmworkers should provide workers with lawful permanent residence status and the opportunity to become citizens. In addition to providing solutions to employers’ legitimate needs for an adequate, productive workforce, such programs should incorporate fundamental principles of fairness, economic freedom, and democracy and keep families together.
The reports generated much local media (see, for example, these pieces from the San Antonio Express-News and Bismarck Tribune) and Farmworker Justice responded to the calls for guestworker programs in a few of the articles. You can read Farmworker Justice’s Letter to the Editor in Maine’s Kennebec Journal and Morning Sentinel here.

Slate Article on Wage Theft in Agriculture & Hot Goods Injunctions

Gabriel Thompson wrote an in-depth piece for Slate on wage theft and other labor violations in agriculture, and the Department of Labor’s enforcement tool known as a “hot goods injunction.” Entitled, “Good Crop, Bad Crop,” the subtitle said the U.S. government is “barely using a law designed to stop” wage theft. This provision allows the DOL – after finding wage or child labor violations of the Fair Labor Standards Act – to request a federal court injunction to prevent the products from being shipped or sold. The rationale of Congress in drafting this section of the FLSA in 1938 was that goods produced in violation of the wage laws would “taint” the channels of interstate commerce and undermine above-board law-abiding employers. It is a powerful tool that Farmworker Justice has called on DOL to use more frequently. If the court grants the injunction, the obstacle to business often will persuade the parties to resolve the case promptly so that the cheated workers receive their pay. If an employer can draw out the process of a DOL investigation, it can be difficult tracking down workers to deliver their lost wages. Additionally, if DOL can resolve cases promptly, it can help more workers with its limited resources: over a four-year stretch, DOL was only able to investigate 1% of the nation’s farms.

The article notes that in the late 1980s, the DOL was very effective at using this provision of the law to strategically reform sweatshops in greater Los Angeles.

Unfortunately, many agricultural employers seem to feel that they can break the law with impunity. Numerous surveys of farmworkers find that a majority have experienced some form of wage theft and between 2010 and 2013, nearly 70 percent of DOL inspections found labor law violations. Thompson attributes this, in part, to the fact that the hot goods provision was utilized just 22 times in the last decade. This reluctance may stem from strong pushback that DOL received from growers and some Democratic and Republican politicians after it obtained large wage settlements after threatening to seek hot goods injunctions against a few Oregon berry growers in 2012. The growers successfully sued the DOL to cancel the settlements, claiming that they were forced to settle under “economic duress,” and the case was abandoned by DOL who could no longer locate all of the farmworkers who worked there, many of whom were migrants.
Farmworker Justice President Bruce Goldstein was quoted in the piece, saying that “there is just rampant illegality in agriculture and workers usually feel that it isn’t worth challenging the violations, or speaking up, because of the risk of being retaliated against.” We encourage you to read the entire article and we urge DOL to increase its use of the powerful hot goods injunctions in agriculture.

Guilty Verdict and Pleas in Federal Case Over H-2A Kickback Scheme

Farmworker Justice is pleased that the Department​s​ of​ Justice,​ Labor​, State​ and Homeland Security collaborated in the investigation and successful criminal prosecution of Sandra Lee Bart for visa fraud in the H-2A temporary agricultural guestworker program. Bart was found guilty in a conspiracy to extract illegal kickbacks from H-2A guestworkers after she and a partner set up a company that was able to use the H-2A program to access workers from the Dominican Republic. They then found growers that were willing to use their services as a labor contractor. At least one of the growers claims to have not known the full extent of the scheme – whereby workers had to cover their own travel costs and even reimburse the grower when the H-2A wage rate increased. Nonetheless, the grower pled guilty to conspiracy to commit fraud.

The protections in the H-2A program are in place to prevent this kind of egregious abuse of guestworkers, but require aggressive enforcement. This case further shows the need for more resources so that DOL can investigate potential H-2A violations.

DOL Requests Preliminary Injunction Against Grower Over Transportation Safety

The Department of Labor is seeking to hold a California grower, Valley Garlic, responsible for its farm labor contractor's failure to legally and safely transport farmworkers, which resulted in a tragic crash and the death of four farmworkers. The lawsuit filed by DOL states that the labor contractor is required by the contract between the parties to transport the farmworkers in compliance with federal and state law, but the labor contractor failed to do so. Even now, said DOL, Valley Garlic has taken no steps to ensure that the farmworkers are safely transported. The Department has requested that a federal court issue a preliminary injunction, ordering Valley Garlic to ensure that its farmworkers are transported safely. We applaud DOL's efforts to hold the grower jointly responsible for transporting farmworkers along with the labor contractor as the grower is in the best position to control the working arrangements and conditions on the farm.

Heat Stress Risk to Farmworkers: Solutions

Modern Farmer re-posted an article from last summer that discussed heat stress and farmworkers. Already one of the most dangerous jobs in the country, every summer farmworkers face the added danger of triple-digit temperatures. Almost every year farmworkers die from preventable heat-related illness. It is critically important that farmworkers be offered water, rest, and shade when temperatures rise.

Unfortunately, only California and Washington have regulations requiring that shade be provided to workers. Furthermore, many farmworkers who are paid piece-rate wages feel pressure to harvest as much as possible to maximize their earnings and not take breaks, as they rarely receive paid breaks. OSHA launched an annual awareness campaign about heat stress for outdoor workers beginning in 2011, but ultimately regulations on shade and breaks are necessary to complement OSHA Field Sanitation, which requires cool, potable drinking water. Farmworker Justice and allies will continue to press OSHA to improve its safety standard. We appreciate the article in Modern Farmer.

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Farmworker Justice Immigration Update 8/3/16

Divide Over Immigration Policy Grows Between the Two Political Parties Making Reform in 2017 Unlikely


An article in Politico highlights the stark divide over immigration policy between the two main political parties this election cycle, indicating that a way forward for immigration reform in 2017 is unlikely. Politico’s Seung Min Kim notes that not everyone in the Republican Party is in alignment with the harsh anti-immigrant rhetoric, but the advocates for building a wall and scapegoating immigrants are dominant. This political polarization exists, despite recent polling showing that 84% of US adults favor creating a path to citizenship for undocumented immigrants who meet a series of requirements. Our analysis of the two major parties’ platforms on immigration, labor and other issues affecting farmworkers is below.


The Democratic National Committee 2016 party platform calls for immigration reform that includes a path to citizenship for undocumented immigrants. The platform commits to efforts to repeal the 3-year and 10-year and permanent bars to adjustment of status for undocumented immigrants, reform to the detention and deportation system, among other recommendations. It also promises to defend President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) initiative, and implement the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expanded DACA guidance.


The Democratic platform calls for an end to raids and roundups of children and families and increased due process for children and families fleeing violence in Central America. However, the platform only states that Temporary Protected Status (TPS) should be considered for, not necessarily granted to, these refugees. Farmworker Justice is disappointed that some political leaders in both parties fail to support TPS for the women and children fleeing violence from Central American countries and urges this Administration or the next to take action. Locking up families and deporting refugee families is inhumane and has not and will not deter people from migrating who are desperate to find safety. Many of these youth will end up in farm work and we hope that they will be provided the limited security that TPS offers.


The Democratic platform does not discuss guestworker programs. It does, however, include support for “an affirmative process for workers to report labor violations and to request deferred action.” This protection against deportation for victims of labor abuses is a priority for Farmworker Justice and we are very pleased to see it in the Democratic Party platform. We have been working with other nonprofits and labor unions to press the current administration to provide a clear process for workers engaged in enforcing their labor or civil rights to apply for and receive deferred action.


The Republican Party 2016 Platform begins by distinguishing between legal immigrant workers, who it acknowledges make vital contributions to American life, and undocumented immigrants. The platform goes on to state that the party opposes “any form of amnesty” for undocumented immigrants. It characterizes as “unlawful amnesties” the DACA initiative of 2012 and its proposed 2014 expansion, as well as DAPA. It states that all three programs “must be immediately rescinded by a Republican president.” In other words, the platform calls on a Republican President to halt both the 2014 programs that have not gone into effect and to end the current DACA program. As of March 31 of this year, 728,285 initial DACA applications had been approved for Dreamers who have received a temporary reprieve from deportation and work authorization, which has allowed many recipients to attend school and vocational programs, work, and obtain driver’s licenses. Ending the program would be harsh, counterproductive and contrary to our nation’s values.


The GOP platform also emphasizes immigration enforcement, restriction of immigration, building a wall along the Mexico-US border, reducing the number of immigrants granted lawful permanent residence (greencards) per year, blocking sanctuary cities and stopping states from providing driver’s licenses to undocumented immigrants. The platform also recommends limiting the refugee and asylum system to “cases of political, ethnic or religious persecution,” and not admitting refugees from countries “whose homelands have been the breeding grounds for terrorism.” In a section of the platform titled, “Confronting the Dangers,” the platform calls for reinstating the National Security Entry-Exit Registration System (NSEERS) also known as “special registration,” a program initiated in 2002, which required men over the age of 16 from a list of predominantly Muslim countries who entered the US on certain types of visas to register with the US government and submit to interrogation.


Regarding guestworker programs, the platform states, “In light of both current needs and historic practice, we urge the reform of our guest worker programs to eliminate fraud, improve efficiency and ensure they serve the national interest.”


The labor sections of the two platforms differ significantly as well. The Republican platform criticizes the National Labor Relations Board’s actions, particularly the efforts to hold corporations accountable for their franchisees, supports “right-to-work” laws, and calls for a national “right-to-work” law which would impede labor union organizing in this country. The platform states that minimum wage laws should be handled at the local level.
The Democratic platform calls for strengthening laws that enable workers to organize and form unions, opposes “right-to-work” laws, calls for paid family leave and paid sick leave laws; and recommends raising the minimum wage to $15.00/hr and indexing it.

Finally, the agricultural communities section of the Democratic platform acknowledges the importance of the Environmental Protection Agency’s Worker Protection Standard, and calls for “stronger agricultural worker protections including regulation of work hours, elimination of child labor, ensuring adequate housing for migrant workers and sanitary facilities in the field.” The Republican section of the platform on agriculture only discusses the contributions of growers and producers and does not mention farmworkers.


Congressional Action on Occupational Safety of Farmworkers

Congress did not accomplish much before it went on its seven-week recess. However, both houses of Congress did pass separate versions of bills funding the Department of the Interior, the Environmental Protection Agency (EPA), the Indian Health Service, the Forest Service, and other agencies (FY2017 Interior and Environment Appropriations bill). The House version is full of toxic “riders” that would limit or prohibit these agencies from spending any funds to perform important functions. One rider would block a provision of the EPA’s new Worker Protection Standard (WPS) that would allow farmworkers to assign a “designated representative” to access information about pesticides to which the worker had been exposed.


After more than 20 years, the EPA recently revised the WPS to better protect child and adult farmworkers, and provide them with the information and tools they need to prevent pesticide exposure in the workplace. The improved provisions are modest and much more needs to be done to protect farmworkers and their communities from pesticide exposure. The designated representative is one aspect of the new WPS, and it is imperative that this hard-fought win remains fully intact. For more information on designated representatives, see this issue brief.


Representative Raul Grijalva (D-AZ) championed an amendment to strike the rider from the House bill. Unfortunately, the amendment did not pass and the harmful WPS rider remained in the bill. Farmworker Justice worked with the United Farm Workers, Earthjustice, and other advocates to kill a separate amendment that would have left it up to states to regulate designated representatives.


The White House has issued a veto threat on the appropriations bill, specifically citing the designated representative rider, among others, as unacceptable. The Senate’s Interior and Environment Appropriations bill does not contain a policy rider affecting the WPS.


The next step in the process would be a Conference Committee of the House and Senate to reconcile their bills and then put the final version up for another vote in both houses. However, that may not happen. With only four weeks left in the legislative session before the 2017 fiscal year begins, Congress will likely pass a continuation of last year’s funding bill that does not contain the harmful WPS rider. Such a “continuing resolution” will likely last just long enough to fund the Federal Government through the elections when the funding debate will resume. Therefore, this rider or other attacks on the WPS are likely to come up again soon and we will continue to defend against them.


The Department of Justice Requested the Supreme Court to Re-hear DAPA/DACA Case


On Monday, July 18, the U.S. Department of Justice asked the Supreme Court for a re-hearing of United States v. Texas. The case, as you know, resulted in a 4-4 tie, affirming the lower court decisions and keeping in place the injunction against DAPA and expanded DACA. Acting Solicitor General Ian Gershengorn requested the re-hearing in the hopes that once there is a new Justice confirmed to the Court, the full nine-Justice Court will issue a favorable decision in the case. Farmworker Justice is pleased that the Federal Government is pursuing a re-hearing. More than 700,000 farmworkers and their family members would have been eligible to apply under these programs, which would grant a temporary reprieve from deportation and temporary work authorization.


Familias Unidas Will Have Union Vote at Washington State Berry Grower


A long running labor dispute in Washington State between farmworkers seeking to be represented by Familias Unidas por la Justicia (Families United for Justice) at a large berry-growing operation, Sakuma Brothers Farms in Washington State, may be nearing an end. The two sides have met to discuss the details of holding a union election and the company has vowed to sit down with the workers if they choose the union.
Separately, Columbia Legal Services was awarded the full $251,699 in attorney’s fees and costs requested for representing Sakuma farmworkers in a class action lawsuit over wage and hour violations that reached the Washington Supreme Court. Pay violations were settled out of court, with 408 workers receiving $500,000, while the Supreme Court ordered back pay to cover 10-minute rest breaks for piece-rate workers. Farmworker Justice submitted an amicus curiae brief in the case.

The H-2A Program Continues Expansion & Growers Seek to Reduce Government Oversight


The use of the H-2A guestworker program continues to rise. According to DOL raw data for the first 3 quarters of FY2016, the Department of Labor has certified employers for 133,739 positions. The total positions certified for all of FY2015 was around 140,000 positions, so this year’s numbers are certain to top last years’ numbers. Despite their access to an unlimited number of H-2A guestworkers, growers’ associations are ramping up pressure on the federal agencies to make it easier and cheaper for growers and labor contractors to use the program. Farmworker Justice and the United Farm Workers sent a letter to the leadership of the Department of Labor and the Department of Homeland Security to stress the need for stringent enforcement of H-2A program rules, given the extensive abuse in the H-2A program of both domestic farmworkes and H-2A guestworkers.


H-2A Wage Rate Manipulation Efforts Apparently Defeated

We received the good news that Washington State’s Employment and Security Department announced that it will survey workers as part of this year’s wages and prevailing practice survey used to set allowable prevailing wages, piece rates and job terms in the H-2A program. The decision came after WAFLA (the growers’ association that brings in large numbers of H-2A workers for employers) fraudulently influenced last year’s Washington State wages and prevailing practices survey. Interviewing workers will hopefully reduce the employer bias in the surveys. Congratulations to Columbia Legal Services and the Northwest Justice Project who have been advocating for workers to be surveyed in addition to employers. Farmworker Justice and other allies assisted in this and related efforts. We also applaud the State of Washington’s efforts to conduct regular, proper surveys in the H-2A program. Many states do not conduct such surveys, and instead, rely on biased-surveys produced by growers’ associations to set the minimum wage rates and other job terms in the H-2A program. We are awaiting an update on the civil and possibly criminal investigations into WAFLA’s conduct.

Note: Farmworker Justice does not support, endorse or oppose political parties or candidates for political office. Farmworker Justice is a 501(c)(3) not-for-profit organization that empowers farmworkers to improve their wages, working conditions, occupational safety, health, immigration policy and access to justice.
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