Immigration and Labor Rights

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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Farmworker Justice Immigration Update 6/14/16

Mourning the Victims of the Attack in Orlando

Farmworker Justice extends its condolences to all those who have been affected by the terrorist, hate-inspired attack on innocent victims in Orlando.


Businesses Lobby Against Worker Protections in the H-2 Programs

As we anxiously await the Supreme Court’s decision in US v. Texas, employers continue to demand rollbacks in worker protections in the H-2 programs. Bloomberg published an article on the H-2A program which fails to provide the worker or the immigrant rights perspective on immigration reform. Instead it views immigration reform through the lens of business and their desire to grow the H-2A program and strip out worker protections. There is no mention of a path to citizenship for the undocumented farmworkers who are essential to the $192 billion (2014 crop production) industry. Nor is there a description of the important role that the Department of Labor plays in protecting both U.S. workers and temporary guest workers.

Last Friday, over 100 members of Congress sent Secretary of Labor Thomas Perez and Director of US Citizenship and Immigration Services Leon Rodriguez a letter complaining about processing delays in the H-2A program. While the letter states that it supports efforts to “ensure that both employers and employees comply with the statutory requirements of the H-2A program,” it specifically asks that both agencies scale back these requirements.

In addition to broad complaints about the program, the letter asks that the Department of Labor (DOL) stop requesting that employers show that they have a temporary or seasonal need for labor. The H-2A program is limited to temporary and seasonal jobs partly to prevent employers from gaining easy access to vulnerable guestworkers for jobs that are year-round, which U.S. workers often prefer. DOL has had and continues to have problems with employers who game the system to hire H-2A guestworkers for year-round jobs. For example, DOL has been receiving H-2A applications for year-round workers on dairies that do not qualify for the program. DOL has caught and denied some of these application but some of them have been approved. If there is a true need for dairies to hire immigrant workers, Congress should create a visa program that allows workers to come to the US permanently, receive green cards and bring their families with them.

The H-2A letter also asks USCIS to stop requiring employers to use the Validation Instrument for Business Enterprises (VIBE) tool. VIBE is used by USCIS to ensure that employers are who they say they are, bona fide businesses that employ agricultural workers. The H-2A program and other visa programs have been used by shell companies and criminal enterprises to traffic people into the country and VIBE is used to weed out those bad actors.

Farmworker Justice is extremely disappointed that this letter was signed by many Members of Congress who purport to support working families. It does not reflect any concern for the widely documented abuse of both guestworkers and domestic workers at employers in the H-2A program. The best solution for protecting workers and granting agribusiness access to an adequate labor force is immigration reform that includes a path to citizenship for undocumented immigrants and for any future workers in agriculture. Meaningful immigration reform should provide security and dignity to farmworkers and help to stabilize the workforce.

Rep. Price’s Comprehensive Immigration Reform Bill Would Harm Immigrants, Refugees and Workers

Last week, Rep. Tom Price (R-SC) filed a comprehensive immigration reform bill that would cut family-based visas in half, institute mandatory E-verify, deny certain tax credits to immigrants, and make several other harmful changes to the immigration system. The bill would also block the current H-2A temporary agricultural guestworker program regulations and reinstate the 2008 regulations promulgated by the Bush Administration on its way out the door. This change would lower wages and reduce protections for both H-2A guestworkers and domestic workers. Upon taking office, the Obama Administration largely restored the H-2A regulations that had been in effect since the Reagan Administration. The bill would raise the H-2B cap from 66,000 to 264,000 visas per year with a returning worker exemption that would allow the program to grow much larger than that.

The H-2 programs are sorely in need of more protections not less. Any expansion of the programs should include a path for guestworkers to apply for green cards, portability of visas so that they may change employers, strong and equal worker protections and the ability to bring their families. In addition, Price’s bill should be opposed because it fails to provide a path to citizenship, or any legal status, for the 11 million undocumented immigrants in this country. Instituting mandatory E-verify would displace millions of workers and drive them further into the underground economy, likely resulting in more exploitation and abuse.

The bill includes a particularly outrageous provision that would take away U.S. foreign aid for Honduras, Guatemala and El Salvador and direct it towards funding for border security. The Northern Triangle countries are plagued by violence from drug cartels pushing people, particularly women and children, to seek refuge in the United States. Rather than address some of the root causes of the refugee crisis by proving funding to reduce violence in the region, Price’s proposal would have women and children make the dangerous journey to the border and then be turned away.

Little Hope for Stronger Worker Protections in the H-2B Program

The Senate subcommittee on Immigration and the National Interest held a hearing last Wednesday titled, “The H-2B Temporary Foreign Worker Program: Examining the Effects on Americans’ Job Opportunities and Wages.” The focus of the hearing was on whether the program has a negative impact on domestic workers - with little time given to discuss the rampant abuses and deplorable working conditions suffered by the H-2B guestworkers. Subcommittee Chairman Jeff Sessions (R-Ala.) opened the hearing by lamenting the “insatiable” need for foreign labor by special interests and the resulting tide of visa overstays. Unfortunately, Sessions’ anti-immigrant tone discredits a hearing that should address real abuse of both domestic (including immigrant) workers and H-2B guestworkers.

Still, the majority of witnesses at the hearing were not anti-immigrant but rather concerned that the program’s design allows for exploitation of H-2B guestworkers and the domestic workers who work alongside them. International Labor Recruitment Working Group members Meredith Stewart, the Southern Poverty Law Center, and Daniel Costa, Economic Policy Institute, testified as to these concerns. Among the issues they raised were inadequate funding for Department of Labor enforcement of program rules, the lack of job portability for workers mistreated by employers, inhumane conditions many H-2B workers are forced to endure, and the stagnation of wages in the industries that use the program. Both witnesses described how the fact that H-2B workers may only work for the employer that sponsors them makes them vulnerable to abuse. Costa elaborated on the link between job portability and wage stagnation. H-2B workers’ inability to leave low paying jobs means that employers don’t have to raise wages and improve working conditions to attract and retain workers, since they essentially have a trapped labor force. Costa also described the deficiencies in the H-2B program’s use of private wage surveys (often conducted by employer associations) for calculating the prevailing wage. These surveys are often inaccurate and result in workers being paid below average wages.

Sen. Richard Blumenthal (D-Conn.) spoke of the abuse committed in the international recruitment of guestworkers and submitted testimony into the record from the International Labor Recruitment Working Group (which Farmworker Justice is a member of) that described a system “rife with abuses.” He stressed concerns about the lack of enforcement in the H-2B program and discussed his frustrations with Senate opposition to any real reform efforts. In response to a question from Sen. Blumenthal, Stewart described the abuses that result from employers’ use of unregulated international labor recruiters who charge workers high recruitment fees causing them to arrive indebt and desperate to keep their jobs. Stewart urged Congress to regulate these recruiters and to hold employers liable for the abuses their recruiters inflict upon H-2B workers.

Michael Cunningham with the Texas State Building and Construction Trades Council, also testified. Cunningham described the effect that the H-2B program has on the building trades and gave many examples of employers who have violated the law in their misuse of the H-2B program, including misclassifying workers to pay them lower wages and refusing to hire US workers.

Also on the panel were Steven Camarota, the Director of Research at the Center for Immigration Studies, an immigration restrictionist who testified that the H-2B program harms US workers and Stephen Bronars, Edgeworth Economics, who testified in support of the H-2B program.

Few Senators attended the hearing. In addition to Senator Sessions, Sen. Thom Tillis (R-N.C.) attended and expressed concerns that if employers had to raise wages, they would go out of business, particularly in the seafood industry. Tillis acknowledged that there has been fraud and abuse in the program but suggested that the abuse is limited to a few bad actors and did not offer a solution to the problems in the program. Senator Chuck Grassley (R-IA) and Senator Amy Klobuchar (D-MN) also made brief appearances with Klobuchar applauding the H-2B program based on the use by one summer resort in Minnesota.

Appropriations Bills Contain Harmful “Riders”

On Thursday, the Senate Appropriations Committee passed a bipartisan Labor, Health and Human Services, and Education funding bill out of the committee that contains the same harmful riders (substantive legislation) that were in last year’s Labor-HHS appropriations bill. These riders defund enforcement of rules under the H-2B guestworker program that protect U.S. workers and H-2B guestworkers. In effect, the bill prohibits DOL from auditing certain employers and applying the definition of “corresponding employment” which determines which U.S. workers are entitled to the same wages and working conditions as guestworkers. It would also defund the enforcement of the 3/4 guarantee which protects guestworkers from being brought to the US and offered little to know work. The ¾ guarantee requires employers to offer or pay for at least 75% of the hours promised in the contract. All workers would also be harmed by the use of private wage surveys allowed in the bill. This allows employer associations to submit wage surveys by their members to set the prevailing wage. We are extremely disappointed that Congress continues to prevent the Department of Labor from enforcing modest protections for H-2B guestworkers and domestic workers.

Scare in DAPA/DACA Lawsuit Resolved Temporarily

On June 7, 2016, over a hundred thousand Dreamers were able to breathe a momentary sigh of relief when U.S. District Judge Andrew Hanen stayed his May 19 order that would have required the Federal Government to release their personal information. The May 19th order demanded that the Federal Government provide the court with the names, addresses and other identifying information of over 100,000 DACA recipients who had received three-year work authorizations last year. There was also an indication that Judge Hanen would consider releasing the information to some or all of the 26 States who are plaintiffs in US v. Texas. The order was issued as a sanction against the Department of Justice attorneys for alleged misconduct in the case.

The Department of Justice responded aggressively to Hanen’s sanctions, arguing that there was no bad faith in their representation and that the order itself was illegal because it exceeded his authority. DOJ also said that it planned to file an emergency appeal with the Court of Appeals if the stay was not granted. Attorneys for MALDEF and several other organizations also submitted a brief challenging the order on behalf of clients who are DACA recipients.

Hanen has stayed his order until an August 22 hearing in response to an expected ruling by the Supreme Court in US v. Texas, which will determine whether DAPA and expanded DACA move forward this year. That decision is anticipated to be handed down by the end of the month. Farmworker Justice will provide an update on the decision as soon as we read it.

 


 

Farmworker Justice Immigration Update 5/27/16

Unprecedented growth in the H-2A program continues as does abuse of workers

The Buzzfeed series on the H-2 programs has highlighted abuses of both guestworkers and domestic workers. Recently Buzzfeed published another great piece, “The Pushovers.” The article sharply criticized the Department of Labor (DOL) for continuing to allow employers to use the H-2A program even where they have been found to violate the program terms, including criminal violations. Central to the article is the H-2A farm labor contractor, Vasquez Citrus & Hauling, which was involved in a bus accident that occurred last year, killing six H-2A workers. The contractor was underinsured in violation of the DOL’s regulations and the driver of the bus did not have a proper license to transport workers. Yet, Vasquez Citrus & Hauling was allowed to bring in more workers this year.

We agree with Buzzfeed that DOL must beef up its enforcement and debarment of bad actors. We continue to advocate for increased and improved enforcement by the DOL, and the resources to do so. One example of the kind of enforcement we need to see more of is a recent investigation by DOL of Red Diamond Farms and its owner. The Department’s Wage and Hour Division (WHD) found violations of H-2A program rules protecting U.S. workers, including by offering H-2A workers more hours and failing to offer domestic workers in corresponding employment the proper H-2A wages, free housing and transportation. DOL also found violations of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Workers Protection Act and assessed significant civil money penalties totaling $1,488,800 for the violations due, in part, to the employer’s efforts to impede DOL’s investigation by denying the presence of domestic workers and segregating their payrolls from the H-2A workers. DOL’s increased assessment of civil money penalties is key to deterring future misconduct in agriculture, where there is inadequate enforcement and we often see repeat offenders. DOL also stated that it is seeking to debar the employer from the H-2A program. The employer plans to appeal the findings.

It is noteworthy that the DOL listed the grocery stores that buy Red Diamond Farms’ tomatoes. WHD Administrator David Weil has written and advocated for a supply-chain approach to wage and hour enforcement, a policy that he has been implementing at the agency. In agriculture, the need for this approach is evident with high rates of violations on farms where profit margins are small and there is little control over the market prices of fruits and vegetables. Supply chain projects such as the Equitable Food Initiative and the Fair Food Program recognize this dynamic and the power of consumers in efforts to improve conditions on the farm.

In its own defense, the Buzzfeed article notes that DOL states “it has made ‘a serious and sustained effort’ to protect both guest workers and U.S. workers but added that many of those efforts have ‘been under constant attack from powerful industry groups seeking to undermine these protections.’” This is absolutely true. Employer associations that use the H-2 programs are constantly lobbying in Congress and asking their Congressional representatives to write letters to the DOL and meet with senior department staff to discuss “problems with the programs.” In the case of the H-2B program, employer associations have sued the agency repeatedly to strip worker protections from the program. When they have lost, they have gotten Congress to strip protections through the appropriations process.

The most recent set of attacks center around complaints of delays in the processing of H-2 applications. Yet, DOL’s statistics show a timeliness rate of 90% for the H-2A program, with many of the delays actually resulting from deficiencies in the applications. While there may be some truth to some claims of delays, many are largely overblown and must be placed in the broader context of growers’ longstanding demands to undermine the DOL’s much-needed oversight of the H-2A program, where abuse of US and temporary foreign workers is extensive. DOL plays the critically important role of ensuring that employers are recruiting domestic workers at market wages and working conditions.

Despite their complaints about the H-2A program’s costs and bureaucracy, employers reap the benefits of employing these vulnerable workers. U.S. workers often are unwelcome at H-2A employers because they have the freedom to switch jobs and are more likely to challenge unfair or illegal conduct or join a union. For more information, read our factsheet on the H-2A program.

Two Atlanta Journal-Constitution articles provide an example of the media and grower attacks DOL faces. The first article provided a very one-sided critique of DOL’s processing of H-2A applications. In the second article, “Expecting labor help, South Georgia farmers get inspections instead” (May 10) , the author made serious allegations without any evidence that the DOL had investigated farms in retaliation for Georgia growers’ complaints about processing delays in the H-2A agricultural guestworker program. The notion that the slow-moving Federal Labor Department could (or would, see Buzzfeed article above) respond in one week to Georgia growers’ complaints published the previous week is also ludicrous. It may make headlines to demonize federal civil servants who simply seek to enforce the minimum wage and other basic labor protections that are in longstanding laws, but it’s offensive and inappropriate. We and others who assist farmworkers know that violations of the minimum wage and other basic labor protections that do apply to farmworkers are very common.

Despite the H-2A program’s rapid growth, Congress has not increased the DOL’s resources to administer the program and fulfill its obligations to prevent and remedy labor violations. In fact, the Department’s budget for processing applications for labor certification has decreased since 2012. While employers must pay fees to participate in the H-2A program, DOL is not able to keep those fees. The President's FY2017 budget contained recommendations to Congress to allow DOL to retain the H-2A fees, and to appropriate more money to DOL to administer the program.

Ultimately, of course, we urgently need immigration reform. The hundreds of thousands of currently undocumented farmworkers and their family members should be given the opportunity to apply for legal immigration status and citizenship.


Looking to the future, if this country needs immigrant workers to work our fields and ensure a prosperous agricultural sector, they should be offered the opportunity for permanent immigration status and citizenship, and not be limited to a restricted guestworker status. Farmworkers deserve not only to have labor rights that are effectively enforced but also fundamental economic and democratic freedoms.

Victory for blueberry workers in California!

Workers at a blueberry farm, Klein Management Company, in McFarland, California successfully went on strike and voted to unionize, joining the UFW. As detailed in an article by David Bacon, the workers went on strike after their piece rates were lowered. Congratulations to them!

Overtime bill for farmworkers in California

There has been a lot of media attention on DOL’s recent overtime regulations lifting the threshold for overtime, but farmworkers are excluded from overtime under the Fair Labor Standards Act. There is now legislation in California that seeks to address this discrimination against farmworkers. In case you haven’t seen it, check out this great editorial in The Los Angeles Times calling for overtime pay for farmworkers in California.


 

Farmworker Justice Immigration Update 4/22/16


Monday, April 18th, 2016 marked a historic day for the immigrants’ rights movement, when thousands of advocates nationwide traveled to the Supreme Court to rally in support of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which would grant temporary relief to millions of undocumented parents, and the expansion of the Deferred Action for Childhood Arrivals (expanded DACA) program. Inside the Supreme Court, the justices heard oral arguments in United States vs. Texas, the case that has temporarily suspended the implementation of DAPA and expanded DACA.


The Rally in Front of the Supreme Court of the U.S.

The brisk early morning air quickly warmed up once Kica Matos, the Director of Immigrant Rights and Racial Justice at the Center for Community Change and the MC for the day, took the stage and electrified both the massive crowd and atmosphere with excitement, hope, and perseverance. The steps of the Supreme Court were crowded with immigrant families and advocacy groups from over 26 states who filled the air with passionate chants, cheers, and music to send a clear message to the Court – treat our families with the respect and dignity we deserve. Read one attendee’s New York Times Op-ed titled, What I Will Do When I Get My Papers.

The powerful rally was fueled and propelled by inspirational speeches, heart-wrenching stories, and powerful music that symbolized the diversity of the larger movement. Speakers included immigrant and labor rights activists, members of Congress, and most importantly, undocumented youth and parents, who shared personal stories and urged the Supreme Court to vote to keep families together. The collective energy at the rally was at a constant high as fellow advocates met one another and rallied together in solidarity.

Many advocates and affected community members camped outside the Supreme Court the night before so they could attend the oral arguments. An estimated 45 immigrant families attended the oral argument, as did many lawyers from immigrants’ rights organizations.

The Oral Argument in the Supreme Court

In addition to hearing from lawyers for Texas and the Federal Government, the Justices heard from Tom Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund who represents 3 mothers who would be eligible for DAPA and are intervenors in the case. Counsel for the US House of Representatives (controlled by Republicans) was also given time to argue on the side of Texas that the programs should be permanently blocked.

Attorneys who attended the arguments have said that the Solicitor General and MALDEF did a good job defending the legality of the programs and arguing against Texas’s standing (right to sue based on a tangible harm) in the case. Most of the time during oral argument was spent discussing standing. There was also significant legalistic discussion around whether deferred action is a “status” and the meaning of “lawful presence” that highlighted just how confusing and complex immigration law is.

In an apparent dramatic development in the Supreme court, Texas seemed to have shifted its argument away from arguing that the Federal Government lacks authority to grant deferred action to a large number of people. Now it is arguing primarily that the Government doesn’t have authority to offer work authorization. One major problem with this argument is that the regulation that allows people with deferred action to apply for work authorization has been on the books since 1987. In addition, many other classes of people under immigration law receive work authorization under this regulation such as people with Temporary Protected Status or applicants for asylum. Invalidating that regulation would upend the immigration system and affect millions of other immigrants. For more information on the issues discussed during the oral argument, listen to AILA’s webcast or read the American Immigration Council’s blog.

What’s Next

It’s very hard to predict outcome of this case. Justices Ginsburg, Breyer, Sotomayor and Kagan appeared to be squarely on the side of the Federal Government. In one potential outcome, the five or more justices will decide that Texas and the other states lacked standing, the case will be thrown out and the programs would be likely to move forward sometime this summer. Since Justice Scalia passed away, there is another likely scenario, where there will be a 4-4 tie among the justices. In this scenario, the lower court decision suspending the programs would not be overturned and the case would be remanded – or sent back -- to the appellate court and district court for further litigation over the issues, which could last for another year or more. We expect a decision by the end of June. If there is a 4-4 decision, it may be released sooner.

Farmworker Justice Immigration Update 2/26/16

National Hispanic Leadership Agenda Issues Quadrennial Hispanic Public Policy Agenda

Immigration policy is among the issues discussed in the report, subtitled “Blueprint for Advancing the Latino Community,” by the 40-organization coalition. Farmworker Justice is on the Board of Directors of the NHLA. The report covers a range of issues, including economic empowerment and labor, health, education, civil rights, environment and energy and government accountability. It is intended to inform elected and appointed government officials, candidates for office, think tanks, advocacy groups and many others.

The Supreme Court and Executive Action on Immigration

As you are probably well aware by now, the vacancy on the Supreme Court left by Chief Justice Antonin Scalia’s death, has turned into a political brawl. The Constitution requires the President to appoint Supreme Court Justice’s “with the advice and consent of the Senate.” Normally, the Senate Judiciary Committee holds a hearing on nominees before the whole Senate votes on the nominee. It is not clear when the vacancy will be filled but it is highly unlikely to be filled before the Supreme Court hears US v Texas, the case on the legality of the DAPA and expanded DACA programs.

So what does the vacancy mean for DAPA? If the Federal Government wins US v. Texas, then the case will likely end, and DAPA and expanded DACA would be implemented, most likely in the late summer. If there is a 4-4 tie by the Justices, then the lower court ruling would stand (although the case would not be considered a precedent for other cases in the future). In this case, the 5th Circuit upheld the order temporarily preventing the Obama Administration from implementing DAPA and expanded DACA, so the programs would remain blocked. The case would then go back to the Texas District court and continue. Judge Hanen in the Southern District of Texas is likely to turn the temporary injunction into a permanent injunction (a court order preventing the programs from being implemented) and the Federal Government could appeal the case back up to the Supreme Court if they choose to. By then we would probably have a new president and a new Supreme Court justice. The lawsuit over DAPA and expanded DACA as well as the programs themselves, would only continue if the new President wants to implement the programs (Clinton & Sanders have promised to do so, the other candidates have criticized the programs). Overall, we still remain hopeful that the Federal Government will win at the Supreme Court this spring and President Obama will implement the programs promptly.

Familias Unidas por la Justicia

Ramon Torres, president of Familias Unidas por la Justicia, a farmworker labor union in Washington State was in Washington, DC last week to gain support for their boycott of Driscoll’s berries and deliver a letter to the Department of Labor on behalf of the union’s members. Familias Unidas is a union of farmworkers who are organizing to form a collective bargaining agreement with Sakuma Brothers Farms, a Washington berry grower. In the 2014 growing season, Sakuma Brothers Farms applied for H-2A temporary agricultural workers and Familias Unidas produced 400 hundred letters from domestic workers who planned to return to work for Sakuma Farms that season. Sakuma Farms ultimately withdrew its application. Last year, Familias Unidas delivered members’ promises to work for Sakuma in anticipation of Sakuma applying for H-2A workers and Sakuma Farms said that they would not use the program. This year, Familias Unidas is again prepared to show that there are sufficient domestic workers to serve the needs of Sakuma Farms.

Agricultural employers may only apply for H-2A workers if they can show that there is a labor shortage. Employers may not use the program to break a strike.

Presidential Candidates, Farmworkers and Immigration Policy

Arturo Rodriguez, President of the United Farm Workers, published an op-ed in the Huffington Post entitled, “Questions Farm Workers Have for Bernie Sanders.”

Other H-2A Program News

Reuters investigated the shady foreign labor recruiters who recruit workers to come work in the US in the H-2 programs. The article highlights Nestor Molina, a recruiter who extracted thousands of dollars in illegal fees from Honduran H-2A workers, and has been able to skirt law enforcement and civil suits.

Farmworkers and the Minimum Wage

This op-ed in the Portland Tribune by Ramon Ramirez, president of the farmworkers’ union Proyecto Campesinos Unidos del Noroeste (PCUN) and a member of Farmworker Justice’s Board of Directors, and Andrea Miller, executive director of Causa Oregon, an immigrant rights organization, titled “My view: the minimum wage is a racial justice issue.” The authors reminded the Oregon Legislature, which was considering legislation to increase the minimum wage, that people of color are more likely than others to make the minimum wage and therefore, live in poverty. They urged the Legislature not to exclude groups of workers, such as farmworkers, that are predominantly comprised of people of color, from an increase in the minimum wage. Last week, the legislature approved the increase, with Gov. Kate Brown’s approval. By 2022, the state’s minimum wage will rise to $14.50/hour in the Portland area, $12.50/hour in rural areas, and $13.25/hour elsewhere.

Beware of High School Diploma Scams

Please see the Federal Trade Commission’ warning page about high school diploma scams. Immigrants who are interested in enrolling in an education program and applying for DACA should be warned against such scams. Note that people who are otherwise-eligible for DACA can enroll in English-language classes or adult education or vocational classes to satisfy the education requirement. Programs that receive federal, state or local government funding or are administered by a nonprofit are likely to be eligible. If you need assistance determining whether an educational program is a scam or are interested in finding out whether an educational program run by a nonprofit could satisfy the DACA education requirement, contact here.
 

Digging Deeper: The Real Reason the H-2A Program is Expanding in Florida

This week NPR aired a story "Guest Workers, Legal Yet Not Quite Free, Pick Florida's Oranges” that featured an H-2A worker, otherwise known as an agricultural guestworker.

In an interview at the beginning of the program, a grower of Florida citrus said that his farm started using H-2A workers to avoid competing for workers who were asking for a higher wage. The farm didn’t want to pay an extra nickel a box that farmworkers asked for and that a competing grower was offering. This frank statement reveals the fundamental problems with the temporary foreign worker program.

The guestworkers don’t ask for wage increases.  Why?  Because as the story reveals, guestworkers don’t have the freedoms that we take for granted in this country.
 
H-2A guestworkers may only work for the one employer that obtained a visa for them.  When the job ends, they must return to their homeland.  If they want to return to the US, they must hope that the employer will invite them back and apply for a visa.  The workers have no independent ability to apply to the US government for an H-2A visa.  Technically, they hold a “non-immigrant” status.  And the law refers to these human beings as being “imported” by employers.  As if they are commodities.
 
In this restricted, temporary status, the workers will not usually challenge unfair or illegal conduct, or even ask for a raise.  They feel lucky to have the job.  And why not?  Usually, the wage is a lot higher than they would make in their own country.  So they will often work to the limits of human endurance.  Growers will say how “reliable” they are, but what is really going on in many cases is that these workers are under such pressure that they are extraordinarily productive. 
 
The story discusses the issue of who is better (or worse) off, a guestworker or an undocumented immigrant worker.  That’s a time-honored debate.  The guestworkers are taken advantage of and so are undocumented workers, but the undocumented workers are, in a sense, free.  They can change jobs, though that is often difficult. 
 
The story does a good job of demonstrating the lack of economic freedom in guestworker programs.  There is also a fundamental lack of political freedom.  No matter how many years the guestworkers are brought back to the U.S., they never earn the right to become an immigrant or a citizen.  Guestworkers don’t vote.  But the employers vote.  And the employers give campaign contributions.  And the employers lobby Congress and the Administration to lower the required wage rates and other obligations under the H-2A program.
 
The H-2A program is supposed to prevent employers from undermining the wages and working conditions of U.S. farmworkers’ job terms.  But the law and regulations generally don’t work.  The lack of economic and political bargaining power on the part of the guestworkers is just too much to overcome.
 
We are a nation of immigrants, not a nation of guestworkers.  The workers we need in this country – and we need farmworkers – should be given the opportunity to be immigrants and citizens.  Because the majority of farmworkers are undocumented immigrants, Congress should pass immigration reform that creates such opportunities and grants farmworkers the economic and political freedoms on which this country was founded.
 

Immigration Update 1/15/2016

Raids
Unfortunately, the Department of Homeland Security brought in the new year with a campaign to aggressively round up immigrants from Central America- who are primarily women and children - for deportation. The Department of Homeland Security and President Obama have come under sharp attack for the raids. The aggressive raids may re-traumatize families who may have been victims of violence in their home countries or during their journey to the United States.

When President Obama announced his executive actions on immigration, he said that he would be deporting “felons not families.” Yet, this operation targets a vulnerable population of women and children. While the targets of the raids may technically fall into DHS’s new enforcement priorities—those that received final orders of deportation issued on or after January 1, 2014—targeting this population is wrong. These families are fleeing some of the most violent countries in the world.

It’s also important to note that these families did not enter the country illegally. They presented themselves at the border seeking asylum, as is their right under the law. Some targets of the raids didn’t have access to counsel and therefore lacked a meaningful opportunity to seek asylum. The families of some of those detained have reported that their loved ones did not know that they had a deportation order. The immigration system is complicated and without counsel many of the refugees may not have even understood that they were required to appear in court. Missing a court date often automatically results in a deportation order. Other immigrants may have had inadequate legal representation. At least 33 people arrested in the raids have received a stay of removal from a judge, in part for claims of ineffective assistance of counsel.

The Guardian confirmed several instances in which Central Americans have been killed soon after being deported home, and reports that there may be more. The Central American refugees are fleeing real danger in their home countries of Honduras, Guatemala and El Salvador. Many organizations are asking the U.S. government to offer temporary protected status to individuals from these countries until conditions in those countries improve. The United Nations will begin screening people for refugee status in the three Central American countries

The raids are causing fear and harm among people in immigrant communities and should be stopped. Information on know-your-rights and how to report a raid are available on NILC’s website

DAPA: Executive Action on Immigration 

The Supreme Court is convening Friday to review cases that are seeking certiorari (a request for review) at the Supreme Court. We are cautiously optimistic that the Court will decide to hear Texas v. US, the case that suspended implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded DACA programs. For the case to be heard, four out of the nine justices must agree that they want to hear the case. We are hopeful that the case will be heard and scheduled for briefing and a hearing this April, and result in a decision by the end of June. Though the outcome is uncertain, we are also hopeful that the Supreme Court will decide in favor of the Federal Government and allow DAPA and DACA plus to be implemented. Chief Justice Roberts and Justice Kennedy are likely to be the swing votes in the case. 

Immigrants’ rights groups have kicked off a week of action urging the Supreme Court to take up the case. Many amicus briefs by different groups are being organized in support of the deferred action programs. Farmworker Justice plans to sign on on to one of the briefs as it did when the case was heard at the Fifth Circuit Court of Appeals. 

Farmworker Justice continues to prepare for implementation of DAPA and expanded DACA through active work in the Coalition for Immigration Reform Implementation (CIRI) and the Si Se Puede network. You can register for CIRI’s Ready America conference to prepare for implementation to be held on February 3-5th here. A limited number of scholarships are available for the conference. 

The H-2A Program
An employer association and large H-2A employer, WAFLA (formerly known as the Washington Farm Labor Association), is under investigation by the Washington Attorney General’s office for its efforts to direct employers on how to answer the Washington State prevailing wage/working conditions survey. WAFLA is the second largest employer of H-2A workers in FY2015, having received labor certification for 7,895 H-2A workers, and also advises employers on how to use the H-2A program. WAFLA has recently expanded its operations beyond Washington to Oregon, California and Michigan. The survey is used to establish the prevailing wage rate, one of several enumerated wage rates in the H-2A program (employers must pay the higher of the federal or state minimum wage, the Adverse Effect Wage Rate, or the local prevailing wage, which may be an hourly wage or a piece rate) and certain other job terms in employers’ applications for H-2A temporary agricultural workers.

In September, WAFLA held webinars and posted videos and documents directing employers to put specific answers that would adversely affect wages and working conditions on the prevailing wages and working conditions survey. The Washington State employment agency (ESD) made preliminary findings that WAFLA’s instructions biased survey results. Farmworkers Justice has been assisting advocacy groups in Washington, led by Columbia Legal Services, and including the Northwest Justice Project, the Washington State Labor Council, and the National Employment Law Project. In addition to advocacy in Washington State where the Attorney General’s office has an investigation underway, the organizations sent a letter to the Department of Labor requesting an investigation to ensure that accurate prevailing wages and working conditions for this season are set. This situation clearly illustrates that in order to get accurate wage and practices information, workers must be surveyed as well as employers. 

Finally, in case you missed it, Buzzfeed published an article over the holidays called the Coyote. The article details Stan Eury’s abuse of the H-2 programs for his personal gain, resulting in a criminal sentence that includes prison time.  

12/17 Immigration Update: Congress's Spending Bill Will Remove Labor Protections from Guestworker Program

Congress has come to a bipartisan agreement on a spending bill to fund the government for the rest of FY2016 and a tax bill that makes permanent some tax breaks for individuals and corporations. Farmworker Justice is extremely disappointed that the appropriations bill contains harmful policy “riders” that will prohibit the Department of Labor from using funds to implement important worker protections in the H-2B non-agricultural temporary foreign worker program. One result will likely be to lower wages for H-2B guestworkers and US workers that work alongside them.

The H-2B program riders will affect forestry workers (who are brought in under the H-2B program but are considered agricultural workers under other laws) as well as landscaping, food processing, hospitality and construction workers. In addition to changing the wage formula, which will likely lower wages in most instances, the riders will prevent DOL from requiring additional recruitment of US workers based on labor market history and from auditing employers’ recruitments. The riders also strip protections for US workers in “corresponding employment” so that very few US workers will be entitled to the same wages and working conditions as H-2B workers that they work alongside. The bill defunds the ¾ minimum-work guarantee, which requires employers to pay H-2B workers for at least 75% of the hours they are promised over a 12 week period. This rule aims to curb the practice of hiring excess H-2B guestworkers and then offering them little to no hours. The bill also effectively enlarges the program by exempting H-2B workers who came in FY2013, FY2014 and FY2015 from being counted toward the annual cap on the number of H-2B visas.

Farmworker Justice opposes expansion of guestworker programs outside the context of comprehensive immigration reform and opposes the removal of labor protections in the H-2B program, which is rife with abuse. Placing these substantive immigration and labor changes into must-pass appropriations bills in order to avoid the legislative process and input from workers, their advocates and the public is shameful.

Farmworker Justice worked through the International Labor Recruitment Working Group Advocacy Committee to oppose these harmful provisions. We thank Senators Richard Blumenthal (D-CT), Bernie Sanders (D-VT), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Jeff Merkley (D-OR), Mazie Hirono (D-HI) and Al Franken (D-MN) who sent a letter to Senate leadership and top appropriators opposing the H-2B riders. However, it was an uphill battle with many Republicans and the top Democratic appropriator, Senator Barbara Mikulski (D-MD), championing the cause of businesses that seek to lower their labor costs and hire vulnerable guestworkers. The ILRWG also sent an organizational sign-on letter in opposition to the riders and released this statement on the appropriations bill. Our previous blog on the H-2B proposals describes the House and Senate bills that would further and permanently strip protections in the H-2B program.
While the tax bill makes permanent important tax credits for families (along with some corporate credits) and postpones the “Cadillac tax,” a tax on expensive health care plans (a priority for some unions with generous health care plans that were bargained for in lieu of higher wages or other benefits), it also contains some harmful provisions that will negatively affect some immigrant and mixed status families.

Both bills are expected to pass and be signed by the President before Congress goes on recess for the holidays. The appropriations deal will avoid a government shutdown. The appropriations bill is expected to rely heavily on Democrats voting in favor of it to pass, which gave them significant leverage in the negotiations process.

As Daniel Costa’s Economic Policy Institute blog explains, there is no evidence of a labor shortage in the industries that use the H-2B program. Even if there were such evidence, there is no valid justification for lowering wages, stripping protections from vulnerable workers, and facilitating hiring vulnerable guestworkers under substandard conditions. Congress should be focused on creating a path to immigration status and citizenship for undocumented workers and opportunities for better job terms for workers in these industries. Foreign workers should not be treated as commodities. When foreign workers are needed, they should be treated with dignity and offered strong labor protections and the opportunity to obtain greencards. We are a nation of immigrants not a nation of guestworkers.

As a final note, if you haven’t already, you should read the Buzzfeed articles on the H-2 agricultural and nonagricultural temporary worker programs. The first, “The New American Slavery: invited to the US foreign workers find a nightmare” focuses on the abuses of H-2 guestworkers, while the second “All you Americans are fired” focuses on the harm caused to US workers by the program.

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