Immigration and Labor Rights

Farmworker Justice Immigration Update, January 18, 2017

Dear friends,


With just two days until the inauguration of President-elect Trump, Washington, DC  is preparing for the change in government.  The Senate has been busy holding hearings on many of Trump’s nominees, although the hearing on the nominee for the Secretary of Labor, Andrew Puzder, has been postponed until February 2 and there is not yet a nominee for the Secretary of Agriculture. Farmworker Justice has joined several coalition letters and statements opposing Attorney General nominee Jeff Sessions, EPA Administrator nominee Scott Pruitt, and Secretary of Labor nominee Puzder. Links to the statements and letters can be found below.

As we have noted in previous updates, the anti-immigrant rhetoric and backgrounds of Trump and some of his key advisors and nominees combined with the threats of harsh immigration enforcement and potential termination of the DACA program have generated a great deal of anxiety and fear in immigrant communities.

Some farmers are also concerned about the threatened immigration enforcement and the impact it may have on their ability to find workers.  The article reports that some farmers are investing in more machinery and others are wondering if they will need to pay more to attract workers. Tom Nassif, President of the Western Growers Association and advisor to Trump, stated that Trump is not interested in deporting their workers.


DACA and the BRIDGE Act

FJ has joined a letter from over 850 organizations requesting President-elect Trump to continue DACA.  Also, on January 12, 2017, Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) reintroduced the BRIDGE Act, with companion bipartisan legislation introduced in the House.  The BRIDGE Act would extend protection from deportation as well as continued access to work permits for Dreamers in the event the Trump administration revokes DACA.  While we are disappointed the legislation doesn’t go further to ensure a path to citizenship for Dreamers and provide broader relief for our broken immigration system, we believe the legislation is important to ensure protection for those Dreamers who came forward to participate in the DACA program.

Farmworker Justice is watching and will report on developments in the new Congress and upcoming Administration.  In addition to the fears immigrant farmworker families are experiencing, we are very concerned by likely efforts by agribusiness to limit government oversight and protections in the H-2A guestworker program.


Trump’s Competing Views on Guestworkers

Trump himself has an interest in the H-2A program that could lead to self-interested changes removing key worker protections.  As reported by The Washington Post, he is the president of a Charlottesville, VA vineyard that has applied for H-2A workers for multiple years, including for 2017.  On the other hand, Trump has repeatedly stressed his interest in protecting American workers and, as we reported in an earlier blog, released a YouTube video stating that he intends to “direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker.” Protecting American workers is  intermeshed with protecting workers with H-2A visas, as the exploitation and vulnerability of H-2A workers harms not only those workers on visas, but all other farmworkers.   The conflict between the pro-exploited-labor lobby and anti-immigrant voices in the incoming Administration is worth observing closely for its  impact the H-2A program protections.


First H-2A Legislation of the Session Introduced

The first H-2A legislation of this Congress was introduced on January 4— the so-called“Family Farm Relief Act of 2017,” HR 281.  The bill proposes to revise H-2A agricultural guestworker program in ways that would deprive U.S. citizens and permanent resident immigrants of job opportunities and allow exploitation of vulnerable foreign citizens who are hired on temporary work visas.  The bill also would permit employers of year-round livestock workers to hire foreign workers under the H-2A program rather than keep its focus on addressing the alleged difficulty of filling jobs that are seasonal or temporary.  Lacking in this bill are any meaningful steps to stop rampant labor abuses under the H-2A program.  Nor does the bill provide a path to immigration status and citizenship for current undocumented agricultural workers or the future year-round dairy workers.  .  Versions of this bill were introduced in earlier Congresses but have never advanced.  The legislation was likely introduced in response to interests of dairy farmer constituents in New York.   An analysis of the legislation can be found on our webpage.  


Several recent media pieces of interest include the following:

An article addressing the issue of safety in farmworker transportation, which continues to be a serious concern, as highlighted by the multiple farmworker fatalities that have occurred.

A piece in the Huffington Post noted that providing decent affordable housing may help attract  U.S. farmworkers to fill open jobs. The company, which had built the housing to bring in H-2A guestworkers, also found that worker productivity increased with the new housing.  As we have been arguing for years, instead of keeping farmworker wages low and working conditions poor, growers should be improving conditions and labor standards to attract and retain workers.  We are pleased to see some of these basic principles of supply and demand are beginning to get recognition in agriculture.

And finally, a LA Times article discussing a plan released by the produce industry regarding abusive Mexican labor conditions.  While this is an important issue that needs to be addressed, the produce industry unfortunately elected not to engage with farm labor unions to design its plan and is instead an effort  by some of the big players to avoid the real efforts at meaningful corporate social responsibility in agriculture, such as the Equitable Food Initiative, of which FJ is a founding board member, and the Coalition of Immokalee’s Fair Food program.


Reminder: Please join our webinar on Tuesday, Jan 24, 2017 at 2:00 PM EST with the Mexican Consulate to learn more about their potential services and how to work with the Consulate to help farmworkers in your community in the face of potential immigration enforcement.

Register now!

A Conversation with the Mexican consulate: Discussing services and protections for Mexican nationals

Please join Farmworker Justice for a conversation with Alejandro Celorio Alcantara, the Head of Section / Hispanic and Migration Affairs for the Embassy of Mexico. Mr. Celorio will share with us the work in which the Mexican consulates are engaging to help their nationals in the face of increased immigration enforcement under the Trump Administration. Mr. Celorio will also discuss potential collaboration to help Mexican workers facing violations of their workplace rights. The call will enable participants to gain a better understanding of how they can collaborate with the Mexican consulate in their communities to better improve services and protections for Mexican nationals.



Attorney General nominee Sessions

Letter from the Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promote and protect the civil and human rights of all persons in the United States, and  144 organizations writing to express strong opposition to the confirmation of Senator Jefferson B. Sessions (R-AL) to be the 84th Attorney General of the United States.

Statement from the National Hispanic Leadership Agenda (NHLA), a coalition of 40 of the nation’s most preeminent Latino advocacy organizations, which adopted a resolution, presented by MALDEF, opposing the nomination of U.S. Senator Jeff Sessions to be U.S. Attorney General, citing his long record in opposition to immigration reform and his work to undermine the protections of voting and civil rights laws.  Farmworker Justice is on the Board of the NHLA


Labor Secretary nominee Puzder

Statement from the National Hispanic Leadership Agenda, which sent a letter to the U.S. Senate opposing the confirmation of Andrew F. Puzder as U.S. Secretary of Labor citing Puzder’s practices and policy positions that are at odds with the needs and aspirations of American workers. Puzder has expressed opposition to raising the minimum wage, has criticized paid sick leave policies like those mandated for federal contractors, and has said that expanding eligibility for overtime pay is bad for workers.  FJ’s Bruce Goldstein is a cosigner of the NHLA letter as he is a co-chair of its economic empowerment and labor committee.


EPA Administrator nominee Pruitt

Statement from the National Hispanic Leadership Agenda, a coalition of 40 of the nation’s preeminent Latino advocacy organizations, which adopted a motion opposing the nomination of Oklahoma Attorney General E. Scott Pruitt as Administrator of the Environmental Protection Agency (EPA), citing his long record working to undermine the environmental protections and enforcement entrusted to this vital agency.  FJ’s Virginia Ruiz is co-chair of the NHLA Energy and Environment committee.


Department of Agriculture nominee

As of January 18th, the only Cabinet level position that remains unfilled is that of Agriculture secretary; possibly due to disagreement between different factions of Trump’s transition team.

Farmworker Justice Immigration Update 12/22/16

National Day of Action to Protect Immigrants & Refugees
January 14, 2017 will be a day of nationwide mass mobilization to protect immigrants and refugees. The day of action, which is already being planned in over 20 states and is rapidly growing, is intended to celebrate the nation’s immigrant heritage and defend against hateful attacks and policies. Scheduled events include rallies, marches, vigils and community gatherings to discuss topics such as deportation defense and establishing safe sanctuaries. To find an event near you visit:

U.N. Special Rapporteur in Trafficking in Persons Concerned about H-2A Program
The U.N. Special Rapporteur in Trafficking in Persons recently concluded a visit to the U.S. At the end of her visit, she released a statement identifying key concerns, including concerns about the vulnerability of agricultural guestworkers under the H-2A foreign worker program, as well as ongoing abuses. She called on the U.S. to improve the way the program operates and do more to stop abuses. You can read FJ’s summary of the statement, media coverage here, and the full statement here.

GAO Reports Budgetary Challenges at Office of Foreign Labor Certification (OFLC)
This month, the U.S. Government Accountability Office (GAO) released a report entitled: “Declining Resources: Selected Agencies Took Steps to Minimize Effects on Mission but Opportunities Exist for Additional Action”. The OFLC, which is charged with reviewing employer applications for the H-2A guestworker program, was one of the agencies studied in the report. The report states that though application volumes were 84% higher in 2015 than in 2010, the amounts appropriated to the agency during this period to process applications decreased by roughly 9%. Given the limited resources available to hire additional permanent staff, the agency reported using temporary seasonal contract staff to help address the application increase. The agency is also requesting an additional $20 million in funding for 2017 and 2018 to process H-2A and H-2B labor certifications, but the agency’s budgetary future remains uncertain. FJ is concerned that these financial constraints and related reductions in staffing could affect the quality and depth of review of employer applications by the OFLC, as the agency tries to process an increasing volume of applications with diminishing resources.

FJ Highlights Ongoing Concerns for Farmworkers in Trump Administration
Amidst continued uncertainty regarding the next administration’s policies on immigration, FJ is closely monitoring developments in the Trump transition. Trump’s team includes anti-immigrant nativists who condemn immigrants and immigration and claim that they want to protect U.S. workers from competition for jobs, including through guestworker programs. On the other hand are business owners and other pro-employer Republicans who are generally supportive of easier access – meaning fewer labor protections and less government oversight -- to temporary foreign workers. Some employer groups are calling for a legalization for current undocumented immigrants. Some of these tensions will play out during upcoming Senate confirmation hearings.

We track negative impacts of Trump’s anti-immigrant rhetoric, which has led to fear among immigrants and hate crimes, causing undocumented workers to be pushed further into the margins of society. In addition to providing policy analysis to farmworker organizations, we are collaborating with other groups to educate farmworker families about their rights and policy developments.

We continue to educate decision-makers and the public, including through media coverage and social media. It is important to bring forward farmworkers’ voices and accurate information about the immigration system and about the H-2A agricultural guestworker program.
Farmworkers need our help and we hope we can count on you for your support for our policy analysis, advocacy, legal assistance, coalition-building, and other efforts to defend immigrants and farmworkers and advance affirmative initiatives.

In the spirit of giving during this holiday season, and recognizing the serious risks farmworkers face from the incoming Administration and Congress, we ask that you consider donating to Farmworker Justice. You may send a check to our office or donate here.

Happy Holidays and Best Wishes for the New Year!


UN Special Rapporteur in Trafficking in Persons Concerned about H-2A Guestworker Program

The Office of the United Nations High Commissioner for Human Rights has issued a statement, released on December 19, following a visit to the United States by Maria Grazia Giammarinaro, UN Special Rapporteur in Trafficking in Persons, especially Women and Children.

The Special Rapporteur, in discussing trafficking, raised concerns about the vulnerability of agricultural guestworkers due to their non-immigrant status under the H-2A temporary foreign agricultural worker program and ongoing abuses under the program.

It is helpful at this moment to have objective observers investigate and comment on the H-2A temporary foreign agricultural guestworker program. Agricultural employers’ use of the H-2A visa program has grown rapidly and likely will continue to expand. Grower associations are campaigning to lower H-2A wage rates and reduce government oversight.

The UN Special Rapporteur said:
“The legal framework governing temporary visas for migrant workers, especially H-2A visa for temporary or seasonal agricultural work and H-2B visa for temporary or seasonal non-agricultural work visas, is of particular concern as it exposes applicants to the risk of exploitation, including human trafficking.”
In practice, she found that for many guestworkers reporting human rights violations or quitting their jobs to return home “is impossible because of the debts they incur from recruitment agencies’ fees.”

She called on the United States to improve the way the program operates and to do more to stop abuses.
Her comments echo our report, “No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers,” available on our website.

The UN’s statement will be useful as we and allies defend farmworkers in the policy battle that will occur in the next Administration and Congress and seek to build a just immigration system that respects working people.

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.

Farmworker Justice

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
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.

Please support Farmworker Justice with your tax-deductible donation.

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.


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