Immigration and Labor Rights

Farmworker Justice Immigration Update 8/07/2015

H-2 Guestworker News

BuzzFeed News published a must-read article on abuses of H-2 guestworkers, “The New American Slavery: Invited to the US, Foreign Workers Find a Nightmare.” The article highlights how the structure of the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program create extremely poor living and working conditions allowing for wage theft, sexual harassment and in the worst cases, allow for modern day slavery. We have heard that Buzzfeed is interested in additional reporting on the H-2A and H-2A programs.

The problems start for H-2 workers when they pay illegal recruitment fees for the opportunity to work in the United States and therefore arrive indebted and desperate to work to repay their debt. As a result, workers will often work to the limits of human endurance to keep their employers happy with their performance. They are tied to an employer for an entire season, and must leave the country when the job ends, factors which make workers extremely vulnerable to abuse. Workers also fear being blacklisted the following year, which makes them unlikely to complain about working conditions or labor violations. H-2A agricultural workers also are excluded from the principal federal employment law for farmworkers, the Agricultural Worker Protection Act. The isolation of H-2A and many H-2B workers, who live in employer-provided housing in rural communities, exacerbate these problems.

When Congress turns back to working on comprehensive immigration reform, it must provide opportunities for foreign agricultural and other lesser-skilled workers who perform jobs vital to our economy to obtain legal permanent residence status and eventually citizenship.

In other H-2 worker news, the Southern Poverty Law Center reached a $20 million settlement on behalf of 200 Indian H-2B workers recruited to work for Signal International on the gulf coast after Hurricane Katrina. The workers paid tens of thousands of dollars in recruitment fees, were subject to wage theft and squalid living conditions, and were illegally detained by company security guards. The settlement came after a New Orleans jury awarded $14 million to five of the workers finding that Signal had engaged in labor trafficking, fraud, racketeering and discrimination. As part of the settlement, Signal also agreed to apologize to the workers. Congratulations to the workers, SPLC and its co-counsel on the case!

Congressional Attacks on Community Trust Policies

Much of the immigration news in recent weeks has focused on immigration enforcement. The murder of a woman in San Francisco by an undocumented immigrant who had recently been released from jail prompted Congress to hold hearings and work on legislation addressing the issue of local law enforcement cooperating with federal immigration enforcement officials. Federal immigration authorities had issued a detainer for the man, but a local ordinance prevents San Francisco authorities from detaining non-violent offenders on immigration detainers when they are otherwise eligible for release. Such policies, referred to as community trust policies, seek to encourage immigrant crime victims and witnesses to come forward without fear of immigration enforcement. Several recent proposals in Congress attack local jurisdictions’ community trust policies through legislation that would strip localities of federal money if they fail to enforce immigration laws. 

Many local law enforcement agencies have community trust policies that include guidelines for police officers’ conduct when interacting with immigrant community members. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members. Many local law enforcement agencies also argue that their limited resources should be focused on enforcing criminal laws and keeping communities safe. 

Some courts have found that local law enforcement agencies have violated people’s Fourth Amendment rights by detaining immigrants without probable cause in order to turn them over to federal immigration authorities. This prompted many local law enforcement agencies to create limited detainer policies that limit the circumstances in which they will detain immigrants with convictions in order to turn them over to Immigration and Customs Enforcement (ICE).

Community trust policies and limited detainer policies conflicted with the federal government’s Secure Communities program, which was heavily criticized for contributing to racial profiling, eroding trust of local law enforcement by immigrant communities and resulting in Fourth Amendment rights violations. In response to these critiques by law enforcement agencies, community members and immigrants’ rights groups, the Department of Homeland Security (DHS) terminated the Secure Communities program at the end of 2014 and announced the Priority Enforcement Program (PEP) to replace it. PEP aims to focus on the detention and deportation of immigrants convicted of felonies and certain other serious crimes, and those who pose a danger to the community or a threat to national security. PEP attempts to remedy the high probability of Fourth Amendment violations by requiring ICE to present probable cause that the person is removable and issue a request for notification rather than an immigration detainer unless there are special circumstances that would make a detainer preferable.

In July, the Migration Policy Institute released a report, “Understanding the Potential Impact of Executive Action on Immigration Enforcement” analyzing the potential effects of DHS’s shift in enforcement priorities and the change from the Secure Communities Program to the Priority Enforcement Program. The report states that under DHS 2014 enforcement priorities, 87% of undocumented immigrants would not fall into one of the deportation priorities outlined by the Department of Homeland Security. The MPI report also addresses DHS’s attempt to promote collaboration between ICE and local jurisdictions in a way that gives local jurisdictions more autonomy in how they manage ICE detainers. However, advocates remain skeptical about how PEP will be implemented.

Despite repeated assertions by ICE Director Sarah Saldaña and Secretary of DHS Jeh Johnson that DHS does not want to use a mandatory approach when dealing with local jurisdictions, the House Appropriations Committee voted to prevent jurisdictions that do not comply with DHS immigration mandates from receiving DHS grants, including FEMA funds. 

On July 23, 2015, the House passed H.R. 3009, the Enforce the Law for Sanctuary Cities Act, which would penalize jurisdictions that have community trust policies. The bill passed by a vote of 241-179 mainly along party lines with only six Democrats voting for the bill and five Republicans voting against it. HR 3009 would make state and local jurisdictions ineligible to receive “State Criminal Alien Assistance Program” funds if the local authorities follow any law, policy, or procedure that prohibits or restricts communication with DHS or other government entities regarding an individual’s citizenship or immigration status. The bill, authored by Representative Duncan Hunter (R-CA) also targets jurisdictions that prohibit state or local authorities from gathering information on an individual’s citizenship or immigration status. The Act would affect over 300 jurisdictions, including many localities that do not have community trust policies, but have policies aimed at protecting the Fourth Amendment rights of their community members. 

There are several similar bills being drafted by Senators. For example, Senator Vitter’s (R-TN) bill, the Stop Sanctuary Cities Act (S.1814), would make it unlawful for state and local jurisdictions to fail to comply with federal immigration detainer requests. Violation of the law would make jurisdictions ineligible to receive State Criminal Alien Assistance Program funds and chronic offenders would be ineligible to receive Byrne Memorial Justice Assistance Grant Program funds. The Senate Judiciary Committee was scheduled to mark-up his bill on Thursday but has postponed the markup until September. 

Senator Feinstein (D-CA) has also outlined a bill that would make compliance with ICE requests for notification mandatory for state and local jurisdictions. Senator Boxer (D-CA) is considering joining Feinstein on the bill. More than 50 California organizations wrote a letter to the Senators opposing the bill.

The proposed laws are problematic for the same reasons the Secure Communities program was considered controversial. Extended detention based on foreign birth or speculation of immigration status results in violations of the Fourth Amendment rights of individuals. Mandatory compliance erodes trust and goodwill between federal agencies and state and local jurisdictions as well as between community members and local law enforcement agents, eroding the safety of local communities. Farmworker Justice signed a letter by the American Civil Liberties Union signed by 139 organizations opposing the Stop the Sanctuary Cities Act.  

Farmworker Justice Immigration Update 7/20/15

Updates on Administrative Relief: Oral Arguments in the Texas v. United States case and Post-Injunction 3-year Employment Authorization Documents under 2012 DACA

On July 10, the United States Court of Appeals for the Fifth Circuit listened to oral arguments regarding President Obama’s DAPA and expanded DACA deferred action programs. The arguments are available here. If the Obama administration prevails and these programs are implemented, they would provide temporary, but renewable, relief from deportation for approximately 4.4 million undocumented immigrants currently living in the U.S. Roughly 700,000 undocumented farmworkers and their spouses are estimated to be eligible for DAPA or expanded DACA.1

Having heard the arguments, the three judge panel will now have to decide whether to keep in place the injunction issued by the district court in Texas or whether to lift the injunction and allow the programs to be implemented. The issues before the court are whether the state of Texas has standing for its lawsuit against the federal government and whether the claims presented by Texas and the other states are matters than can be decided by the federal courts. Alternatively, the Court can consider on constitutional grounds whether the president overstepped his authority when he created DAPA and expanded DACA programs. If the court finds that the President did overstep his authority, it would affirm the February injunction of the District Court that prevented President Obama’s plan from moving forward.

As to whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration (the “standing” issue), the arguments on that issue largely have centered on the costs Texas would incur by having to issue driver’s licenses to DAPA beneficiaries. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Texas is arguing that the driver’s license costs are an injury that gives them the right to sue. Texas Solicitor General Scott Keller told the panel that the suing states will be harmed if the president’s policies are allowed to take effect, as they’d result in undocumented immigrants gaining lawful presence in the U.S and becoming eligible certain health-care benefits. 

On the other side of the arguments, the US Government’s lawyer (Benjamin C. Mizer, a principal deputy assistant attorney general) asked the panel to lift the injunction and clear the way for President Obama’s DAPA and expanded DACA programs. He noted that these programs are meant to protect qualifying immigrants from deportation and allow them to work in the country legally. Judges Smith and Elrod questionned the US government about its contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States. Assistant Attorney General Mizer argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound. Judge Elrod’s question in response underscored her skepticism - “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”

Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on the panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal of the injunction. In that prior opinion, they disagreed with the US Government’s contention that Texas had no standing. They also previously ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act (in other words, that the Obama Administration should have engaged in notice and comment rule-making to create the DAPA and expanded DACA programs), which the Justice Department disputes.

The July 10 oral arguments lasted for more than three hours. The judges did not say when a decision will be issued. Whoever the losing party is, it is likely they will appeal the decision. The losing party could seek “en banc” review by the 5th Circuit Court of Appeals; however, it is not clear that this would be advantageous for the US government to do. The next step would be a request for the Supreme Court to review the issue. The timing of the 5th Circuit’s ruling is important because of the limited intake of cases and calendar of the Supreme Court’s oral argument sessions as well as the upcoming presidential campaign. A decision from the nation’s highest court could come during the intensity of the 2016 presidential campaign. The last time around, after the appeals court considered the emergency request to stay the injunction, that ruling wasn’t handed down until more than a month after the oral arguments in April. It’s conceivable a final decision on the constitutionality of President Obama’s immigration executive order may not come until the summer of 2016.

DACA Post-Injunction 3-Year EADs

As we mentioned in our last update, the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been impacted is the issuance by DHS of 3-year employment authorization documents (EADs) after the issuance of the injunction on February 16, 2015. The Judge has ordered DHS to show compliance with the injunction by July 31, 2015 and DHS is replacing the 3-year EADs issued or mailed after the injunction with 2-year EADs. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction must be returned to DHS. If DHS does not recover the 3-year EAD, it may call recipients and possibly conduct home visits to recover the 3-year EADs. It is very important that individuals who fall in this category return their 3-year EADs. DHS is threatening to take adverse action against those DACA recipients who fail to return their 3-year EADs, including the possible termination of DACA employment authorization, with possible negative future implications.

This recall does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

For those who would like assistance knowing whether the recall applies to their EADS, United We Dream has developed a tool for people to "screen" themselves: www.unitedwedream.org/uscisalert

Additional resources are available on USCIS’s webpage in English or Spanish

On CLINIC’s webpage in English and Spanish

And from NILC: http://nilc.org/nr071515.html.

 


1Ed Kissam and Jo Ann Intili, Number, Distribution, and Profile of Farmworkers Eligible for DAPA or DACA, (Revised/Expanded analysis), Werner-Kohnstamm Family Fund, Dec. 12, 2014, at p. 3, available at http://www.wkfamilyfund.org/docs/Profile-Farmworkers-Eligible-for-DAPA-or-DACA.pdf.

Farmworker Justice Immigration Update 7/10/15

Status of legal challenge to executive action on immigration

Yet another 4th of July passed without immigration reform, depriving millions of aspiring Americans of an opportunity to come forward and obtain protection from deportation and the ability to live and work in the United States without fear. Unfortunately, the road to relief may continue to be a long one.

The injunction preventing the implementation of President Obama’s immigration relief programs remains in place. Oral arguments on the appeal of the injunction were held today in the 5th Circuit Court of Appeals. The arguments are available here. Because two of the 5th Circuit Court of Appeals’ judges who ruled against the Obama Administration’s earlier request for an emergency stay of the injunction are on the panel that is hearing this appeal,the prospects for a favorable outcome are considered low. We cannot predict the timing of the 5th Circuit’s ruling. We do know, however, that the fight is not yet over. It is likely that either losing side will appeal the decision, possibly to the entire 5th Circuit Court of Appeals (called an en banc decision) and eventually to the Supreme Court. Unfortunately, the lawsuit has caused significant delays and is impeding the ability of eligible individuals to enroll in the DAPA and expanded DACA programs. Once we have had an opportunity to listen to the oral argument we will share any relevant observations with you. 

Remember that the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been affected is the issuance of 3 year employment authorization documents (EADs) following the injunction in February. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction will be replaced with 2 year EADs and the 3 year EADs must be returned to DHS. There are roughly 2000 of these post-injunction EADs. Roughly 100,000 3 year EADs were issued prior to the injunction and those DACA recipients are not affected by this recall.

Actions in support of immigration relief and against family separation took place today in New Orleans and across the country. Farmworkers traveled to New Orleans with the UFW and UFW Foundation to join the actions. The actions are sending the message that we will continue fighting for immigration reform and that we will hold elected officials accountable for their actions and statements. More information is available at http://www.stopseparatingfamilies.org/events/.

What’s going on with Congress’s continued failure to pass immigration reform…

H-2A agricultural guestworker program

In June/early July, the U.S. State Department reported a glitch on their computer system to process visas, including H-2A visas. Several hundred H-2A guestworkers waited along the borders for days as the computer system was being repaired. Impacted employers protested loudly, pointing to a loss of profits. Of course H-2A workers were also suffering from these delays as they incurred costs for hotel and sustenance while waiting for the ability to travel to the United States and begin work (the employer is ultimately supposed to pay the costs but until that happens, workers carry the burden of the debt).

The back-up demonstrates what we already know: the H-2A program is not a solution to our nation’s broken immigration system. Congress must take action to enact comprehensive immigration legislation that provides a path to legalization for the roughly 11 million aspiring Americans, including farmworkers and their families. Immigration reform should also address the flawed H-2A program and should ensure that any future guestworker program includes a roadmap to citizenship, strong and equal labor protections, true economic freedom and mobility, and sensible limits.

State Legislation

While we would love for Congress to wake up to the realities on the ground and pass immigration reform legislation, it’s unlikely in the near future. We are already seeing Presidential candidates using the immigration issue to build their campaigns, most notably in the downright racist comments of Donald Trump, of which we are sure many of you are all too aware.

Some states have tried to take matters into their owns hands (remember Utah?) and now there is legislation in California that seeks to do just that-- Assembly Bill 20, authored by Assembly Member Alejo. Unfortunately, as currently framed, AB 20 is actually more like a grower-sought guestworker program than a legalization program that respects the contributions of agricultural workers. The legislation adopts grower critiques of the H-2A program, requires potentially eligible workers to meet a past and future agricultural work requirement (with none of the modest protections found in the H-2A program), and does not ensure that farmworkers have equal representation in process. As the symbolic legislation that it is (since it’s a state acting in a federally preempted sphere, which the bill acknowledges), the legislation and its symbolism should be based on immigration status and economic freedom, not a narrow “work permit” along the lines of a guestworker program that primarily serves the benefit of agricultural employers. 

Unionization and Litigation Successes Help Address Broken and Discriminatory System

The undocumented status of the majority of farmworkers is widely recognized as a major contributing factor to the low wages, poor conditions and extensive illegal practices in agriculture. Recent settlements and cases highlight the rampant abuses in agriculture but also point to successes in the courts. The U.S. Equal Employment Opportunities Commission (EEOC) settled for $330,000 a sexual harassment and retaliation lawsuit on behalf of 10 farmworkers against Zoria farms (which previously operated a dried-fruit processing company that was sold to Z Foods). The case alleges that at least four female workers were sexually harassed by two supervisors. Along with their coworkers, the women reported the issue; however, their complaints were not addressed by the company. Instead, the victims and coworkers who reported the harassment were not rehired when Zoria Farms was sold to Z-Foods. The case against Z Foods is still pending.

In a victory for farmworkers, the United Farm Workers and five workers settled lawsuits against the California Division of Occupational Safety and Health (Cal-OSHA) for neglecting its duty to enforce the Heat Illness Prevention regulations. The settlement will result in better enforcement of the heat protection regulations and better coordination with the UFW to ensure that farmworkers and other outdoor workers are protected from heat illness and death. More information, including an informational video featuring Secretary of Labor Perez and UFW President Rodriguez, is available on the UFW’s website.

In New Mexico, years of advocacy by the New Mexico Center on Law and Poverty has resulted in a decision by the state Court of Appeals that the exclusion of farm and ranch laborers from the Workers’ Compensation Act violates farmworkers’ rights to equal protection under the state Constitution. In reaching its decision, the court noted “[w]e fail to see any real differences between farm and ranch laborers and all other workers in New Mexico that would justify the exclusion.”

In Vermont, dairy workers with Migrant Justice are organizing for justice through the launch of a new campaign, Dairy for Dignity. The campaign seeks to improve living and working conditions for workers through a five-point plan that would include a farmworker authored code-of-conduct, farmworker education, and economic relief. Ben and Jerry’s has committed to working with Vermont dairy workers to adopt the Milk with Dignity campaign in its supply chain. Migrant Justice’s also recently released a survey of living and working conditions for dairy workers. The survey found that roughly 40% of Vermont’s dairy workers are paid under the Vermont minimum wage and have no day off per week. On average, the dairy workers surveyed worked between 60-80 hours per week.

Farmworker Movement in DC

Finally, we wanted to share that on July 3rd, the Smithsonian’s National Portrait Gallery opened their exhibit “One Life: Dolores Huerta,” focusing on Dolores Huerta’s work and role in the farmworker movement of the 1960s and 70s. If visiting with your Members of Congress is not reason enough for you to come to DC, this exhibit provides you another purpose for a trip to DC! As you may know, Farmworker Justice earlier this year created an annual Dolores Huerta Award.

Stay tuned for our next update, in which we plan to share more information and analysis about the DHS’s enforcement priorities. 

Farmworker Justice Update 6/12/2015

Status of Executive Action on Immigration

Millions of aspiring Americans await resolution of the lawsuit against President Obama’s DAPA and expanded DACA programs. As we shared earlier, the 5th Circuit Court of Appeals denied the Obama Administration’s emergency request for a stay of the injunction (requesting the court to allow the programs to proceed while the litigation is pending). The denial of the stay was disappointing but not conclusive, as it was an emergency motion in front of a very conservative panel of judges. While 2 of the 3 judges on the panel were conservative and voted to deny the stay, the 3rd judge dissented and sided with the Administration.

The appeal of the injunction is moving forward with a hearing scheduled for July 10. In a promising development, the appellate court’s order regarding briefing indicated that the judges that will hear the July 10 arguments do not feel bound by the decision denying the stay request. We do not yet know who the three judges on the panel will be. Unfortunately the 5th Circuit is considered the most conservative circuit in the nation.

The House of Representatives meanwhile, on an appropriations bill, voted to prevent the Obama Administration from using any funds to defend its immigration actions in the lawsuit. President Obama has already threatened to veto the spending measure due to domestic spending cuts.

Proposed Legislation on H-2A Agricultural Guestworker Program

Some members of Congress continue to show interest in the failed anti-immigrant, guestworker-only model, rather than seek a balanced solution that includes a path to immigration status and citizenship for undocumented workers. U.S. Rep. Rick Allen (R-Ga.), with the support of Rep. Sanford Bishop (D-Ga.) and 8 others introduced a bill, the BARN Act, that would slash needed protections in the H-2A program and remove important government oversight. The bill is similar to one introduced in the past by former Rep. Kingston (R-GA). Our summary of the bill can be found here. In the Senate, Senator Ron Johnson (R-WI) seems to hold a similar position, saying “[f]rom my standpoint, if you really want to secure our border, let’s eliminate or drastically reduce the incentives for illegal immigration, starting with a guest worker program.” In March, the Senate Homeland Security and Governmental Affairs Committee, which he chairs, held a hearing that focused on future guestworker programs. 

Guestworker Program Developments

Guestworker programs, by imposing a temporary, restrictive non-immigrant status deprive people of economic and political freedoms in violation of our country’s values of democracy. The Economic Policy Institute recently conducted a briefing highlighting a study showing that temporary foreign workers’ lack of bargaining power, due to their vulnerable status and dependency on their employers, results in low wages in comparison to those with immigration status and citizenship. Unfortunately we are seeing increased use of the H-2A program. 

DHS’s increased enforcement of immigration laws has been one factor leading to an increased use of the H-2A program. A recent fine of $2.25 million levied against Washington apple grower Broetje Orchards is one of the largest ever levied against an agricultural employer. Since the majority of farmworkers are undocumented, such enforcement is likely to lead more employers to use the H-2A program. 

Media Coverage and Recent Polling

Numerous recent news articles highlight the conditions in which farmworkers are living and working. In Kentucky, Southern Migrant Legal Services and the Kentucky Equal Justice Center filed three separate federal lawsuits on behalf of 39 Mexican guestworkers against six tobacco farmers for squalid housing conditions, back wages, and other violations.

Photographer and journalist David Bacon released a three parts series on the living conditions of farmworkers in California, specifically on their low wages and lack of health care, with a focus on the indigenous community. In Bacon’s first article, he discusses the low wage levels for farmworkers, noting that if (as proposed by the UFW in the late 90s) the price of a clamshell box of strawberries increased by just 5¢, the workers' wages would increase by 25%. Most consumers wouldn't even notice the increase, since the retail price normally fluctuates far more than that. The Coalition of Immokalee Workers has used this concept in their penny per pound campaign. Bacon’s second article shares the experiences of a Triqui farmworker and his family (the Triqui are indigenous people from the western part of the Mexican state of Oaxaca). The series concludes with the story of a Triqui farmworker mother sharing her work experience in the pea fields of California and the poverty and health problems she experiences due to her long hours in the field.

Despite the hostile attitude towards immigrants in Congress, there continues to be broad public support for a pathway to legal status for undocumented individuals. According to a recent Pew Hispanic Center poll, 72% of all Americans back a pathway to legal status for undocumented immigrants who meet certain requirements. 

Administration Coordination on Immigration/Labor Intersection

Immigration status is central to the ability of many farmworkers to feel empowered to assert their rights in the workplace and seek improved wages and working conditions. As part of the President’s November 2014 executive actions, the president created an Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws to address the intersection of employment and immigration enforcement. On May 8, the working group, which includes the DOL, DOJ, DHS, EEOC and NLRB, issued an action plan to achieve its goals to “enhance coordination in those cases where federal responsibilities to enforce labor, employment, and immigration laws may overlap, to ensure that workers who cooperate with labor and employment enforcement may continue to do so without fear of retaliation, to ensure that unscrupulous parties do not attempt to misuse immigration enforcement or labor laws to thwart or manipulate worker protections or labor and immigration enforcement, and to ensure the effective enforcement of these laws.” The action plan lists goals to accomplish or begin within the next 6 months, including “[c]lear explanations and methods for accessing any temporary or permanent immigration benefits or relief that may be available as the result of workplace violations or criminal activity in the workplace.” 

FJ believes that access to deferred action or other immigration relief is key to ensuring an improved ability for undocumented workers and guestworkers to assert their workplace rights without fear of immigration enforcement or other retaliation. We look forward to working with our colleagues to help make this a reality for those workers. For those of you on the ground, please share with us any recent examples where immigration enforcement (or fear of it) is interfering with workers’ exercising their rights. 

Farmworker Organizing

Mexican farmworkers in San Quintin Baja California, many of whom are also indigenous people from southern Mexico, organized and appear to have won major improvements that they hope to spread to other areas. While the agreement is a victory, there remain many challenges in implementation of the wage rates and the government’s assurances of social security and overtime (which many US farmworkers are still excluded from). The wage rates are an improvement but are not as high as the workers sought; moreover, they are still low in comparison to US farmworkers' wages for doing the same tasks on the same kinds of fruits and vegetables that are exported to the US and that we pay US prices for. 

Finally, in an event showing the shared struggles in agriculture around the globe, the International Labor Rights Forum held a conference on June 3rd titled Hasta La Victoria! Farm Worker Justice in Global Supply Chains.” The panels, which included FJ’s Bruce Goldstein,, focused on challenges to securing worker rights in agriculture, and labor organizing in the tobacco industry in North Carolina and Malawi. U.S. Representative Marcy Kaptur (D-OH), delivered the keynote speech. The two featured speakers, who were also honored during the ILRF’s evening award dinner, were Baldemar Velasquez, President of the Farm Labor Organizing Committee, AFL-CIO, and Raphael Sandramu, General Secretary of the Tobacco and Allied Workers Union of Malawi. 

Farmworker Justice will continue its efforts toward a justice immigration system. Please keep with us on our blog, Facebook, and twitter feed. Many materials on immigration, labor, occupational safety, and health are on our website, www.farmworkerjustice.org.  

New Research Shows Guestworkers and Undocumented Workers Both Vulnerable in Workplace: Highlights the Need for Immigration Reform that Provides True Immigration Status with a Path to Citizenship

Research presented at a recent panel organized by the Economic Policy Institute underscores the need for comprehensive immigration reform with a path to lawful permanent resident status (LPR) and eventual citizenship. The research demonstrates the precarious position in which both temporary workers and undocumented workers find themselves in the workplace, where they lack bargaining power due to their vulnerable immigration status and dependency on their employers. Legal status with a path to citizenship can help farmworkers and other workers improve wages and prevent the exploitation of undocumented workers and guestworkers by unscrupulous employers (collective bargaining agreements, like those negotiated by the farm labor union FLOC on behalf of H-2A guestworkers, can empower workers to combat the effects of the H-2A visa’s restricted status).

All Immigration Status Is Not Equal: Temporary Legal Status Is Not Sufficient to Improve Wages

For those who are familiar with the challenges facing undocumented workers and guestworkers, the findings from the research are not surprising. According to research by Lauren Apgar, a PhD candidate in Sociology at the University of Indiana Bloomington, both temporary workers and undocumented workers earn significantly less than LPRs. On average, H-2 workers and undocumented workers earn 11% less than LPRs. The research also demonstrated that despite the fact that temporary workers have work authorization, there is no statistical difference between their wages and the wages of undocumented workers.

With regard to H-2A workers specifically, Apgar’s research found that with variables such as trip characteristic and human capital held constant, undocumented workers and H-2A workers earned about 26 to 30 percent less than LPRs; with H-2A workers’ total monthly earnings closer to those of undocumented workers than to LPR earnings. This changed somewhat when factoring in the value for the free housing provided to H-2A worker by their employers. With the addition of an added value for housing, wages for H-2A workers were closer to the wages for LPR workers. The research did not, however, factor in the recruitment costs many H-2A workers pay for the opportunity to work in the United States. Despite the fact that such fees are illegal under the H-2A program, the payment of recruitment fees is rampant. The desperation many H-2A workers feel to repay the recruitment fee debt increases their vulnerability on the workplace. 

In examining factors contributing to lower pay for temporary and undocumented workers, the research notes that despite temporary workers’ legal status, they lack mobility in the workplace and their ability to work in the United States is tied to the employer who brought them into the United States. Because H-2A workers are dependent on their employer for their continued employment, housing, and legal status in the United States, they are less likely to raise concerns or complaints for fear of losing their employment and legal status. Specifically, Apgar notes that “both legal status groups are subject to employer exploitation because they fear retaliation and deportation, and employers take advantage of this fear to pay them the lowest possible wage.”

These findings are significant as we experience a dramatic growth in the H-2A program. The H-2A program, which has no limit on the number of H-2A visas that can be issued per year, more than doubled in size in recent years. The program increased over 140%: from about 48,000 worker positions certified in FY 2005 to about 117,000 worker positions certified in FY 2014. From FY 2013 to FY 2014, several states saw significantly large increases in program usage, including an increase of 17% in North Carolina, 35% in Florida, 44% in California, and 45% in Washington. Despite loud employer complaints about the “bureaucracy” of the H-2A program (really their barely veiled dislike of DOL oversight and the program’s minimal worker protections, as well as housing and transportation costs), the broken immigration system combined with the opportunity to select and control their workforce is enticing more and more growers to the H-2A program.

The H-2A program is designed to protect the wages and working conditions of U.S. workers but Apgar’s research points to major structural flaws in the H-2A program and raises important questions about the adequacy of its protections. These findings should also be important considerations as Congressional members yet again propose harsh one-sided guestworker programs as the way forward on our broken immigration system and agriculture.

The ability to pay unauthorized and H-2A workers significantly less than LPRs leads to lower wages for all workers in a workplace that is largely dependent on undocumented workers. Research presented by Tom Hertz of the Economic Research Service at the U.S. Department of Agriculture highlights this point. Hertz examined the National Agricultural Workers Survey (NAWS) data and found that unauthorized workers earn 4% less than LPRs and 8% less than naturalized citizens. While the wage data for undocumented and LPR workers shows a smaller wage differential than in Apgar’s research, this can be explained by the fact that Hertz controlled for other characteristics which impact wages, such as years of education and English-language skills. While it may seem surprising that the wage differential for undocumented workers and those who are LPRs and naturalized workers is not greater; one factor may be the fact that the presence of so many undocumented workers has saturated the workforce and resulted in a wage depression that is felt across the industry. Furthermore, despite employers’ claims of labor shortages in the fields, conditions are so bad for all farmworkers that there is little upward pressure on their wages—if there really were a dire labor shortage, the first economic indicator one would expect to see is rapidly increasing wages paid to workers.

Impact of Legalization on Farm Labor Force: Many Agricultural Workers Will Remain in Agriculture after Employment Authorization

Hertz also examined the impact of legalization on the workforce. Hertz found that most workers who legalized in 1986 under IRCA remained in agriculture after legalization, despite stagnant wage rates. IRCA’s primary impact was to accelerate the departure of the 20% of workers who likely were planning to leave agriculture anyway. This research belies the widespread assumption that most agricultural workers will leave agriculture if given a legal status.

The study of farmworker employment post-IRCA provides a rough guide to how today’s farm labor supply would respond to the legalization of a portion of unauthorized farmworkers. Hertz noted that, for instance, if half of current farmworkers are unauthorized and half of them are granted employment authorization through DAPA/DACA, this may cause farm labor supply to decline by 5% over 5 years. This is a far cry from the belief that legal protections will leave farmers with “nothing to replace [their workers] with.”1

In conclusion, the research demonstrates the need for immigration reform that provides a path to citizenship—rather than temporary and contingent legal statuses that facilitate exploitation and abuses—and thus highlights the problems that a guestworker approach presents.

See also this article from In These Times: http://inthesetimes.com/working/entry/18008/guestworkers_and_unauthorized_immigrants_report.


 1Dan Charles, Farmers Fear Legal Status for Workers Would Lead Them off the Farm, NPR (Feb. 26, 2015) http://www.npr.org/sections/thesalt/2015/02/26/387698016/do-your-veggies-depend-on-workers-who-lack-legal-rights.

Temporary Injunction Remains in Place for Now with 5th Circuit Divided Decision to Deny of DOJ’s Request for Stay

Farmworker Justice is deeply disappointed by the 5th Circuit’s decision today to deny the Department of Justice’s request to stay the temporary injunction of DAPA and expanded DACA. This decision means continued delays in the implementation of the expanded DACA and the DAPA programs that could provide relief for 4-5 million hard-working parents and Dreamers of the United States. The decision comes exactly one week after the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) was supposed to begin.

This ruling does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The full appeal is still pending and is tentatively scheduled for oral argument in early July. The decision does not affect the current DACA program announced in 2012, which is still in effect and accepting new applications and applications for renewal.

While disappointed, Farmworker Justice is not deterred. We will continue to defend President Obama’s administrative actions until the fight for administrative relief is successful. Roughly 700,000 farmworkers and their spouses could be eligible to come forward to apply for temporary protection from deportation and work authorization under the deferred action opportunities. The programs are well within the President’s authority and are a limited but important step toward addressing our broken immigration system. By eliminating the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.

Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families and other aspiring Americans.

Farmworker Justice Immigration Update 5/18/15

Tomorrow marks the date that the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) was supposed to begin. On this day, the parents of U.S. citizen and lawful permanent resident children should have been able to come forward to apply for temporary protection from deportation and work authorization.

Unfortunately, President Obama’s DAPA and expanded DACA programs remain enjoined by a Texas federal district court order. We are still awaiting a decision on the Obama Administration’s expedited request to stay the injunction, which was argued on April 17. The Administration is also appealing the injunction via normal procedure, and the briefing of the legal issues is ongoing, with oral arguments tentatively scheduled for early July. Last week, more than 100 Republican members of Congress submitted an amicus brief supporting Texas and urging the 5th Circuit to uphold the district court’s injunction, arguing that the President exceeded his authority by creating the new DAPA and expanded DACA program. NILC has prepared an overview of the legal scenarios in the Texas v US case which provides some additional detail about possible outcomes at this point.

To honor this day and to send a clear message of support for DAPA and expanded DACA, groups from around the country will engage in actions tomorrow. For more information about events in your area, please click here.

One final issue that has arisen as a result of the district court’s injunction relates to work permits issued under the 2012 DACA program. Under President Obama’s November 2014 immigration actions, DACA work permits were to be extended from 2 to 3 years. As part of the injunction, however, DHS was enjoined from issuing 3-year work permits. Because some 2,000 3-year work permits were issued after the injunction, DHS is now in the process of replacing those 3-year work-permits with 2-year ones. This may be causing some confusion in the community, so please let us know if you hear of any concerns or other experiences.

In other news, the House anti-immigrant members have acted yet again, this time voting 221-202 in support of an amendment by Rep. Mo Brooks (R-AL) that struck a provision in the defense authorization bill encouraging the Secretary of Defense to allow DACA individuals to enlist in the armed forces. The provision had been offered by Rep. Gallego (D-AZ) and added to the defense authorization bill during the committee markup.

One interesting development for farmworkers is taking place in our neighbor Mexico. After weeks of strikes and unrest, the Mexican government reportedly has agreed to subsidize farmworkers’ wages in the state of Baja California. Farmworkers are demanding a minimum daily wage of $13. Details of the agreement are yet to be reached, including the grower and government distribution of the wage increase. Much of the produce—strawberries, tomatoes, and other vegetables—is exported to the US where consumers may pay close to a Mexican worker’s full day of wages for just one pack of strawberries.

Finally, as we mentioned in our previous update, the DOL is engaging in long overdue rulemaking for H-2A sheepherders and other range livestock workers. An overview of the proposal is attached. We will circulate sign-on comments shortly. 

Farmworker Justice Immigration Update 5/1/15

Yesterday FJ released our report reviewing US DOL’s enforcement in agriculture (available here). The report “U.S. Department of Labor Enforcement in Agriculture: More Must be Done to Protect Farmworkers,” analyzes 8 years of DOL’s statistics on its enforcement of the minimum wage and other basic labor protections applicable to agricultural workers on farms, ranches, and dairies. The report concludes that despite some recent improvements, more enforcement is necessary in order to improve the conditions in our fields. Consumers of fruits and vegetables want to know that farmworkers in the field are treated decently, and law-abiding growers do not want to be undermined by businesses that violate wage-hour laws, but the reality is that there are widespread violations in agriculture.

While DOL’s enforcement is central to addressing and deterring these violations, our broken immigration system is another key factor. As we have pointed out, without immigration status, many farmworkers are too fearful of deportation to step forward to enforce their labor rights. In the majority undocumented farm labor force, this has had a devastating impact on farmworkers’ wages and working conditions as well as the level of workplace violations. Our new report shows that DOL found violations in almost 70% of the investigations taking place over an eight-year period during the Obama Administration. Immigration reform that provides a path to citizenship is key to stabilizing the farm labor force and improving wages and working conditions for farmworkers. President Obama’s November 20, 2014 administrative actions are an important step forward and could reach roughly 700,000 farmworkers and spouses, providing them with both work authorization and protection from deportation. A recent piece from the Center for American Progress in honor of May Day highlights the benefits that President Obama’s administrative relief would bring to farmworkers.

As you all know, unfortunately, the Texas v. US litigation has continued to delay implementation of these administrative relief programs with the district court’s February 16 injunction still in place. Following the oral arguments on the government’s emergency motion to stay the injunction held on April 17, we are still awaiting a ruling from the 5th Circuit. The US government’s appeal of the injunction is also still pending in the 5th Circuit and oral arguments have been tentatively scheduled for the beginning of July. As you can see, litigation – the “wheels of justice”—often move slowly and can sometimes be a tool for the unjust as well. FJ and other legal experts remain confident in the legality of the President’s actions and continue to defend his actions and plan for a favorable resolution of the case and successful implementation of the DAPA and expanded DACA programs.

Congress: Anti-immigrant sentiment continues to be on display in Congress. On Wednesday, the House Judiciary Committee held a hearing on birthright citizenship and whether it is the right policy for America. For those of you familiar with the Constitutional amendments, you will recall that the notion of birthright citizenship derives from the 14th Amendment, which was passed at the end of the Civil War to ensure that all of those born into slavery would be entitled to citizenship. Two Congressional members, Representative Steve King (R-IA - the vehemently anti-immigrant member infamous for his “cantaloupe” calves comment about DACA youth) and Sen. David Vitter (R-LA) have introduced bills to end birthright citizenship. While these bills are not likely to go anywhere, it is extremely troubling that this issue is even receiving serious consideration as the subject of a House hearing. The hearing also suggests that the House is not yet done pandering to its extreme anti-immigrant members.

Along with this theme of extremism and failure to heed public consensus for sensible reform, the House also seems to be intent this Congress on continuing its failed history of pursuing one-sided guestworker reform legislation. On April 15, several members of New York’s congressional delegation, led by Rep. Gibson (R-NY), reintroduced the failed “Family Farm Relief Act of 2015,” HR 1805. The bill proposes to expand the H-2A guestworker program and remove oversight and protections instead of addressing the need to legalize the current experienced workforce. The bill would expand the H-2A program to include year-round livestock workers, including those at dairy operations. This expansion would not include any opportunity for the current experienced work force to obtain immigration status and does not seek to address the rampant abuse in the program. The bill would also transfer the H-2A temporary foreign agricultural worker program from the DOL to the USDA despite the fact that the USDA has no experience running any such programs. Finally, the bill would strip existing recruitment protections for US workers applying for these and other agricultural jobs, resulting in tremendous job loss for US workers across the industry. FJ will prepare and share an analysis of the legislation in the upcoming weeks as we continue to educate members of Congress about why guestworker-only proposals will fail agriculture and this nation. On these points and the need for comprehensive immigration reform, FJ’s president Bruce Goldstein published two recent Letters to the Editor in the Wall Street Journal and the South Carolina Greenville Online.

New regulations in H-2A range worker and H-2B programs: On the issue of guestworker programs, the Department of Labor has issued two recent notices relevant to agriculture: H-2A sheep/goat herder and open range livestock workers and H-2B comprehensive and wage regulations. On April 15, 2015, in response to a court order, the Department of Labor published a notice of proposed rule making for sheepherders, goatherders and range livestock workers. The proposed rules are welcome and long overdue, but must be strengthened. Range workers have long been excluded from many of the limited but important H-2A program protections. Due to the politically powerful ranching lobby, there have been longstanding “special procedures” for herder and range livestock H-2A workers. Under the DOL proposed regulations, wages would be strengthened and there are other improvements as well, such as greater clarity about the tools and supplies employers must provide free of charge. However, the proposed regulations must be strengthened. For example, while the wage requirement in most states -- $750 a month—would increase by more than double, the increase phases in too slowly, does not adequately compensate range workers for all of the hours they work while on call 24/7, and does not ensure workers have access to their earnings. Further, there is need to strengthen the range housing requirements for basic necessities such as heating and food storage. We urge you to weigh in for greater protections for sheepherders and will share model comments and/or a sign-on letter by May 11.

Also this week, the DOL and DHS jointly issued interim final H-2B regulations following years of litigation over the H-2B program. The rules were effective immediately and will be finalized following a 60-day comment period. The H-2B comprehensive rules, which are very similar to the 2012 rules, are a victory for US and H-2B workers. The rules would ensure greater protections for H-2B workers during recruitment abroad and on the job, as well as greater protection for US workers who are interested in the positions. Centro de los Derechos del Migrante has indicated concern, however, that the wage rule may lead to lowered wages due a loophole allowing industry wage surveys. More information will be shared as it is available.

Farmworker Justice Immigration Update 4/3/15

Cesar Chavez Day and National Farmworker Awareness Week

Tuesday was Cesar Chavez Day – a day to honor the farmworker civil rights leader that continues to inspire many. Cesar Chavez Day marked the culmination of Farmworker Awareness Week. Farmworker Awareness Week is an opportunity for farmworker groups across the country to conduct events and engage in social media to raise awareness of the contributions farmworkers make and the challenges they face. To mark Cesar Chavez Day, Farmworker Justice attended a ceremony at USDA naming a courtyard in honor of Cesar Chavez; participated in a panel discussing immigration and the agricultural sector to highlight the need for comprehensive immigration reform with a path to citizenship for farmworkers; and delivered a petition with over 21,000 signatures to the EPA urging them to finalize the update to the Worker Protection Standard which protects farmworkers from pesticides. Of course, the fight for justice for farmworkers extends beyond this week and we look forward to continuing our work with many of you to make this happen.

Texas v. US

As reported in the last update, the Department of Justice has requested that the Fifth Circuit Court of Appeals issue an emergency stay blocking the district court judge’s injunction of DAPA and expanded DAPA until the appeal can be heard. The Fifth Circuit Court will hold oral arguments on the DOJ’s request for an emergency stay on April 17th. Presumably the court will make a decision soon thereafter. Even if the 5th Circuit fails to stay the injunction, this does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The Fifth Circuit also set a briefing schedule for the appeal of the district court’s injunction. The final brief will be due on May 18th. The court has not yet scheduled a date for oral arguments of the appeal and it has not disclosed the names of the judges who will sit on the 3-judge appeals panel.

Potential applicants for DAPA and expanded DACA are encouraged to continue saving money and collecting documents to prepare for the application process once it is implemented. For more information on DAPA and expanded DACA, read Farmworker Justice’s article (in English and Spanish) in the most recent Catholic Migrant Farmworker Network Newsletter attached to this email.

The House: Mandatory E-Verify

Immigration advocates and some others, including many agricultural employers, continue to highlight the devastation an enforcement-only approach such as mandatory E-Verify would have on our economy, on our nation’s aspiring Americans and on industries such as agriculture. Earlier this week, 61 Members of Congress (55 Republicans and 6 Democrats) sent a letter to Speaker Boehner and Judiciary Chairman Goodlatte expressing their concern that enacting mandatory E-Verify without ensuring “a legal, reliable workforce in both the short and long term” would “cause serious problems for our domestic agricultural industry and our nation’s economy. Farmworker Justice agrees that mandatory E-verify on its own would be devastating for farmworkers and their families. Our broken immigration system must be addressed through comprehensive immigration reform that provides a path to lawful permanent residency and eventual citizenship for the 11 million, including farmworkers and their families. We would strongly oppose any effort to pair mandatory E-Verify with a new guestworker program for agriculture. This would result in even greater devastation for agriculture, as US workers would be displaced by the new visa program, guestworkers would face great worker abuses, and the current experienced undocumented workforce would be pushed into an underground economy where they would be even more vulnerable to exploitation.

The letter also critiques the H-2A program as being unworkable for employers. We disagree and are educating congressional offices about the recent growth of the H-2A program as employers increase their use of it. At the same time, the increase in the numbers of employers using the H-2A program concerns us as the worker’s temporary nonimmigrant status and their tie to the employer that brings them here leads to great vulnerability and exploitation of both H-2A and US workers. Immigration reform is urgently needed.

The number of Republicans on the letter demonstrates a challenge House leadership may have trying to pass legislation such as mandatory E-Verify on its own. We will be advocating to ensure legislation such as E-Verify does not pass without broader immigration reform, including a path to citizenship.

Senate Hearing

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing on “Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows.” The witnesses were Jeffrey S. Passel, Ph.D., Senior Demographer, Hispanic Trends Project, Pew Research Center; Daniel Garza, Executive Director, The LIBRE Initiative; Madeline Zavodny, Ph.D., Professor of Economics, Agnes Scott College and Adjunct Scholar American Enterprise Institute; Randel K. Johnson, Senior Vice President, Labor, Immigration, and Employee Benefits, U.S. Chamber of Commerce; and Marc R. Rosenblum, Ph.D., Deputy Director on Immigration Policy Program, Migration Policy Institute. The hearing focused on future guestworker programs, with some background discussion of demographic information regarding where the undocumented population resides and in what occupations they work (presumably to address where such future guestworker program would be needed). 

With the exception of Passel, whose organization does not take policy positions, the panelists advocated for a new “market-driven” guestworker program with visa portability. The witnesses generally agreed that wages, payroll treatment and benefits provided to guestworkers should be the same as those provided to US workers. One point of disagreement was that Rosenblum argued for robust workplace enforcement of labor protections, whereas Johnson and Garza expressed concerns related to protecting "innocent employers" from investigations by the Department of Labor's Wage and Hour Division. Another point of disagreement was the issue of circularity, that future guestworker should be encouraged to go back and forth between the US and their country of origin. Zavodny and others emphasized encouraging circularity, while Rosenblum said that workers shouldn't necessarily be forced to return. If workers have jobs and want to stay in the US, there should be a way for them to adjust to permanent residence status. 

Farmworker Justice opposes the notion of guestworker programs; however, we supported the agriculture compromise in last Congress’s Senate comprehensive immigration reform bill, S. 744, recognizing the political realities at the time and believing that the bill would benefit immigrants, including farmworkers, because of its path to citizenship for the undocumented and some future guestworkers, as well as key worker protections. Regarding the question of the permanency of “guest” workers, Farmworker Justice believes that guestworkers should be able to become full members of our society through a path to citizenship. While some foreign workers may choose not to remain permanently in the United States, that choice should be theirs. Even for those workers who may eventually return to their country of origin, lawful permanent residency gives them freedom and workplace equality that even the best structured guestworker program will never be able to offer. From our perspective, a discussion about future guestworker programs outside of the context of comprehensive immigration reform and without key stakeholders is troubling. 

New H-2A Sheepherder Regulations

The Department of Labor has been ordered to properly promulgate rules for the H-2A open range livestock workers by a federal court. The plaintiffs in the lawsuit are US workers and former herders who would like to be sheepherders if they were offered living wages and better living conditions. Range sheepherding is almost exclusively done by foreign H-2A workers and the unreasonably low-wages have remained stagnant for years, preventing US workers from entering the labor market. It’s high time for DOL to reform this inhumane program. The Department of Labor’s notice of proposed rulemaking is due out by April 15th. Keep an eye out for requests to sign-on to comments.

In advance of the new regulations coming out this April regarding protections for H-2A sheepherders, employers are already crying wolf that they will go out of business if they have to pay a living wage or provide decent housing for their employees. The employer-driven media, however, fails to note that the monthly wage provisions are just $750 a month in most states for sheep and goatherders to tend their flocks around the clock. While the federal law exempts sheepherders from the minimum wage, herders in Oregon and California are covered by state minimum wage laws and receive higher wages, $1,603.00 and $1,422.52 a month respectively. The ranchers in these states have not gone out of business paying these wages. Sheepherder wages may even need to be higher in order to attract US workers to the jobs. The DOL should come up with a formula that takes into account the adverse effect wage rate used for all H-2A non-sheepherders. If wages are increased across the H-2A sheepherder program, the playing field will be leveled for employers across the US.

Herders also often live in extremely isolated conditions, with some workers living in small mobile homes with no heat or refrigeration. With no access to stores, the herders rely on their employers to bring them food once a week and there have been many stories of workers going hungry. Herders’ extreme isolation and low wages make them very vulnerable to wage theft and trafficking. We look forward to DOL’s upcoming reforms to improve wages, living and working conditions for workers in this historically abusive program.

The H-2B Rules

Centro de Los Derechos del Migrante and Polaris have created a Change.org petition urging the Department of Homeland Security and the Department of Labor to jointly issue the 2012 H-2B rules that provide for increased worker protections for H-2B temporary nonagricultural workers. You can sign-on to the petition here

Mexican Farmworker Strike

Thousands of farmworkers in San Quintin Valley, Baja California, Mexico, began a labor strike on March 17th, protesting low wages and poor working conditions. The striking workers also shut down 55 miles of the Trans-Peninsular Highway for several days, blocking the movement of produce from Baja California to the US. The highway blockade has been stopped for now, but the work stoppage continues.

The workers are paid about $10/day, and for most wages have not increased in years. In addition to higher wages, the workers seek employers’ compliance with their obligation to pay into Mexico’s social security and health insurance system as well as with labor laws. The workers’ alliance also demands an end to sexual harassment in the fields. Last Wednesday, an employer representative offered the workers a 6% increase—that is, just $.60 more per day— an amount the workers understandably found offensive. As negotiations continued the employers increased their offers to an 8% increase per day. The workers, represented by the Alliance of National, State and Municipal Organizations for Social Justice, a coalition of indigenous groups, countered with a demand to be paid $19 a day. The strike and the negotiations have continued into this week. The organizers have also said that they plan to call for a boycott of goods produced in the region.

Many of the fruits and vegetables grown near San Quintin in the Mexican state of Baja California are grown on large farms that use modern technology and are sold in major US supermarket chains and restaurants. Some of the farm operators are co-owned by or affiliated with U.S. companies. Often, US consumers will not notice a price difference between produce grown in the US and produce grown abroad. Mexican farmworkers should be earning higher wages and the laws should be enforced. 

Farmworker Justice stands in solidarity with these striking farmworkers who seek to improve their working conditions and be paid a living wage. The U.S. government should use its influence with U.S.-based corporations and with the Mexican government to press for enforcement of labor rights and improvement in wages and working conditions. 

A few of the farmworker leaders in San Quintin drew on organizing experience and relationships in the US with the United Farm Workers union and the Coalition of Immokolee Workers. The United Farm Workers started an on-line petition to US retailers asking that they demand that they hold the growers, such as Driscoll’s accountable. An important solution to address these problems is the Equitable Food Initiative, which Farmworker Justice co-founded with other organizations, including the UFW and Costco Warehouse. The EFI, www.equitablefood.org, offers training of workers and managers and a certification system to assure growers, workers and consumers that there is compliance with meaningful standards on wages and working conditions, pesticide safety, and food safety. The EFI is working with two farms in Baja California in Mexico as well as farms in the U.S. and Canada.  

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