Pesticides

Farmworker Justice Update: 3/27/2020

 

Farmworkers Face Threat From COVID-19

This past month has brought an explosion of uncertainty to farmworker communities with the emergence of COVID-19 in the United States and around the world.  The COVID-19 crisis highlights the inadequacies and the inextricable links between our healthcare system and our immigration system, leaving many farmworkers in particularly vulnerable positions. Food and agriculture has been labeled an essential sector, meaning that many farmworkers will likely continue to work as this crisis unfolds. In many cases, farmworkers do not  have health insurance or sick leave. Some states have reopened their ACA enrollment period, and the Trump administration is receiving pressure from Congress to open a special enrollment period on healthcare.gov, where eligible uninsured individuals could sign up for health insurance coverage amid this public health threat. In addition to these difficulties, farmworkers often are fearful of immigration enforcement at places like hospitals where they may need to get life-saving treatment if facing a severe case of the COVID-19. ICE has pledged not to enforce immigration laws against those seeking medical care, but many undocumented individuals are still fearful of accessing these needed services.

Farmworker Justice is collaborating with farmworker-serving organizations and many other organizations across the United States to help farmworker families confront the very serious challenges caused by COVID-19.  We are gathering information and devising strategies to help farmworkers and their organizations advance solutions for the health and well-being of farmworkers, their children and their communities. Farmworker Justice’s complete statement on the COVID-19 crisis and its impact on farmworkers can be found here. In addition to the challenges described above, H-2A visa workers face additional uncertainty related to COVID-19. Confusion abounded last week as the immediate future of the H-2A foreign guestworker program became unclear when the Trump administration announced that U.S. consulates would no longer process visas, and later, that the southern border would be shut except to vital industries. Eventually, the Administration clarified that agricultural workers would fall under the vital industries category, and that returning agricultural employers are eligible for this exemption. Similarly, the United States Department of Agriculture (USDA) has entered into an MOU with the Department of Labor looking at transferring workers that are already in the country to other employers.

Farmworker Justice and farmworker advocates on the ground will continue to monitor the situation to better understand the impact of COVID-19 on the H-2A visa process. Also, we will urge the Administration to require stronger worker protections from agricultural employers. Farmworkers should be treated as the essential workers they are, and their health and safety should be a prime consideration, not just an afterthought.

  Cuccinelli Not Properly Installed as Head of USCIS

On March 1, a federal judge ruled that Ken Cuccinelli was unlawfully appointed to head the United States Citizenship and Immigration Services (USCIS). The court ruled that the Trump administration violated the Federal Vacancies Reform Act when it appointed Cuccinelli. Under the law, the “first assistant” will take over if the Senate confirmed director steps down. However, Cuccinelli did not work for USCIS prior to taking the helm. Instead, the acting head of DHS at the time, Kevin McAleenan, appointed Cuccinelli. As a result of this ruling, at least two of the asylum policies rolled out by Cuccinelli, who is a hardliner on immigration issues, may be overturned. The Trump Administration is expected to appeal the decision.

Labor Contractor Violated Visa Requirements at North Carolina Based Farm

On March 5, the Department of Labor (DOL) announced that a labor contractor, SBHLP Inc., had been found in violation of H-2A guestworker visa requirements. Among the violations, the labor contractor did not feed the workers three meals per day, made them pay their own visa expenses, and did not pay for the workers’ travel expenses as required by law. The workers were working on five North Carolina based farms. The labor contracting company must pay $224,249 in wages to 194 employees, and a $239,430 civil penalty to DOL. They are also debarred from the H-2A visa program for 3 years.

Wisconsin Supreme Court Rules that Workers be Paid for Time Putting on Gear

On March 19, the Wisconsin Supreme Court ruled that workers cannot negotiate away pay for time spent putting on and taking off protective gear. The lawsuit began in 2010 when around 230 current and former employees sued for back wages for the time spent dealing with protective gear. The lower court ruled in the employees’ favor, and the case went directly to the state’s Supreme Court. The farm defended their actions by stating that the workers had given up the right to compensation for time spent dressing during collective bargaining, and that the de minimis doctrine applies in the case. That doctrine permits employers to disregard otherwise compensable work that takes only a few seconds or minutes beyond scheduled working hours. The court ruled that these arguments were not valid and that employees cannot negotiate away the time spent on protective gear under state law. Additionally, the compensation added up to several hundred dollars per year, which undermined the de minimis argument. The case is not finished. The Wisconsin Supreme Court sent the case back to the district court to review claims that were not addressed in the first ruling, including that the ruling would unjustly enrich the employees.

 

Update on Farmworker Health and Safety

Maryland Passes Chlorpyrifos Ban

On March 18, the Maryland legislature passed a ban on the use of chlorpyrifos in the state.  Farmworker Justice supports this ban and testified in the Maryland legislature in favor of the bill. The ban goes into effect on January 1, 2021 and sunsets in 2024, and it allows for some limited excepted uses. Advocates say that it is a step in the right direction. Maryland is the fourth state to ban the pesticide, but only the second one to do it through legislative action. (After the bill was introduced, the Maryland Department of Agriculture announced that it would take steps to prevent chlorpyrifos use. However, the proposed steps were much weaker than those suggested in the bill.) The bill currently awaits Governor Larry Hogan’s signature.

ACA Celebrates 10 Year Anniversary

On March 23, the Affordable Care Act (ACA) celebrated its 10th anniversary. The ACA’s passage was a monumental achievement; it increased access to comprehensive health care for low-income individuals, including farmworkers. Among the ACA’s achievements are: Medicaid expansion, the establishment of health insurance marketplaces and subsidies to lower the cost of health insurance, and additional funds to community health centers providing farmworkers with benefits to which they would not otherwise have access. While the law has been attacked from several angles, it continues to provide access to healthcare for many Americans every year.FJ will continue to promote policies that increase access to health insurance and health care for farmworkers and their families. More information about the ACA and farmworkers can be found on our website.

 

Farmworker Awareness Week

National Farmworker Awareness Week (NFAW) is a week of action for organizations, community members and students to raise awareness about farmworker issues in communities throughout the United States. This year heralds the 21st annual celebration and events highlighting the many contributions of farmworkers as well as the challenges they face. This year, NFAW will run from March 25th-31st. This important effort is coordinated by Student Action with Farmworkers (SAF). Farmworker Justice has participated in the planning committee for a number of years and will be posting a series of blogs and Facebook posts throughout the week. The complete list of themes and more information about the week can be found here.

National Farmworkers Awareness Week Blog: Dangerous pesticide chlorpyrifos banned in Maryland

Last week, Maryland became the fourth state in the U.S. to ban chlorpyrifos, thanks to the tireless efforts of a broad coalition of farmworker, environmental and public health advocates. The ban will take effect on January 1, 2021 and will sunset in 2024. It also provides some limited waivers for certain crops. In spite of these limitations, the bill is still a significant victory for the health of Maryland’s farmworkers and general population. Farmworker Justice’s Senior Staff Attorney Iris Figueroa testified in favor of the chlorpyrifos ban before the Maryland General Assembly last month.

Chlorpyrifos is a highly neurotoxic insecticide developed from World War II-era nerve gas. In addition to the developmental dangers it poses to babies, exposure can cause dizziness, vomiting, convulsions, numbness in the limbs, loss of intellectual functioning and death. Toxic pesticides like chlorpyrifos are just one of the many ways in which farmworkers and their families are routinely exposed to high levels of pesticides in the fields where they work and the communities where they live.  Farmworkers’ persistent exposure to pesticides results in thousands of reported pesticide poisonings, illnesses and injuries each year.  Even the children of farmworkers cannot avoid exposure due to the proximity of their homes, schools and playgrounds to the fields where pesticides are applied.

In 2000, the US Environmental Protection Agency (EPA) banned the use of the pesticide chlorpyrifos in residential settings because of emerging evidence that it posed unacceptable risks to young children.  But the agency allowed continued use of the pesticide in agriculture, a double standard that has exposed an entire generation of farmworkers and their families through airborne drift, water contamination, and even the residues on workers’ clothes.  In 2017, former EPA Administrator Scott Pruitt rejected the recommendations of the EPA’s own scientists and refused to ban further agricultural uses of chlorpyrifos, even though the agency’s own risk assessment found that there are no safe levels of the pesticide in food or water, that unsafe exposures to farmworkers continue on average 18 days after applications, and that workers who mix and apply chlorpyrifos are exposed to unsafe levels even when using protective gear.   

In response to the EPA’s decision to ignore its own science, Earthjustice, Farmworker Justice and various other organizations filed a lawsuit seeking a federal chlorpyrifos ban.

While EPA continues to delay action to ban chlorpyrifos, lawmakers at the federal and state level are also taking action. At the federal level, last year Sen. Tom Udall (D-NM) introduced the “Protect Children, Farmers and Farmworkers from Nerve Agent Pesticides Act of 2019”and  Rep. Nydia Velasquez (D-NY) introduced similar legislation, the “Ban Toxic Pesticides Act of 2019.” These bills would ban all food uses of chlorpyrifos.

 Several states have also banned use of the pesticide at the state level, including Hawaii, New York and California. Maryland has now become the fourth state to join this list, and only the second state to do so via legislation, providing decisive protections in the face of federal inaction. Similar efforts to ban chlorpyrifos are currently underway in other states, including Oregon, Washington and Connecticut. Farmworker Justice applauds these state and federal efforts to take swift action where EPA has failed to uphold its mission to protect human health and the environment.

Farmworker Justice Update: 2/28/2020

 

Public Charge Rule is Now in Effect 

Pursuant to recent Supreme Court decisions, on February 24, the Administration's public charge rule went into effect in all 50 states. Farmworkers applying for LPR status in the U.S. as well as those applying for visas at U.S. consulates abroad will now be subject to the new public charge assessment. It is important that farmworkers and farmworker service providers receive accurate information about public charge, including the new public benefits definition and the other factors in the totality of circumstances test.

FJ recently updated its fact sheet on public charge, available here. FJ also developed a farmworker-focused module, part of a daylong service provider training, available on the California Primary Care Association website. More information about the public charge rule, including community resources, can be found on the Protecting Immigrant Families (PIF) website. Although the Supreme Court overturned the preliminary injunctions against the rule, several lawsuits, including one in which Farmworker Justice is a plaintiff, are ongoing.

Press Conference in Support of FWMA

On February 26, several grower groups and members of the House of Representatives from both sides of the aisle came together to urge the Senate to pass the Farm Workforce Modernization Act (H.R. 5038). The bill passed with a bipartisan majority of 260-165 in the House in December. Farmworker Justice strongly supports the bill, and our factsheet on the bill can be found here.

The National Labor Relations Board Releases Final Joint Employer Rule   

On February 26, the National Labor Relations Board (NLRB) published its final Joint Employer rule in the Federal Register. The new rule restricts the circumstances in which businesses that use workers hired through third parties can be held jointly liable for violations of the National Labor Relations Act, which does not apply to farmworkers.  This new rule parallels the regulation released by the Department of Labor (DOL) last month under the Fair Labor Standards Act (FLSA), which regulates the minimum wage, child labor and overtime pay (farmworkers are excluded from overtime pay under FLSA). This rule – by placing “employer” status on only one business when two or more businesses share responsibility for employing workers -- shields many businesses from liability for workers’ rights violations and from the obligation to bargain in good faith with labor unions. FJ has been part of a coalition of labor advocates that have fought against legislation in Congress promoted by employer associations seeking to restrict the use of the joint employer doctrine. The DOL rule is already being challenged by 17 states and the District of Columbia in the Southern District of New York, and it is likely that this new rule from the NLRB will similarly be challenged.

“PRO Act” Passes the House

On February 6, the House passed the “Protecting the Right to Organize Act of 2019,” or “PRO Act” (H.R. 2474). The bill was introduced by Rep. Bobby Scott (D-VA) and passed by a vote of 224-194. The bill would make it easier for workers to certify unions, change how employers classify workers, prevent workers from being denied collective bargaining rights because of immigration status, and eliminate state right-to-work laws, among other measures. The PRO Act faces severe opposition from many Republicans, including President Trump, and its path forward in the Senate is unclear.

Florida Considers Bill Requiring E-Verify

The Florida state legislature is currently considering whether to impose E-Verify, a government run program to verify the identity of workers, on Florida employers. There are ongoing negotiations over the “Verification of Employment Eligibility Act” (S.B. 1822). Gov. DeSantis supports the proposal while many employers do not. During committee hearings, an exemption for private employers, including agricultural employers, amended the bill. Private employers could still use the federal I-9 program that is already available. This amendment infuriated the bill’s sponsor, and he claims he will urge the governor to veto the bill in its current form.

President Trump Releases Proposed 2021 Budget

On February 10, President Trump unveiled his proposed FY 2021 budget. The proposed budget includes large cuts to safety net programs, including Medicaid and housing subsidies, federal broadcasting, and student loan initiatives, while at the same time increasing spending in areas such as border enforcement and the military. Over the course of his presidency, few of President Trump’s budget proposals have made it into law.

 

Update on Farmworker Health and Safety

State-Level Efforts to Ban Chlorpyrifos

On February 26, Corteva, one of the main producers of chlorpyrifos, announced that they would stop selling the chemical by the end of 2020. Sales of the highly toxic pesticide have been dropping as places like the European Union and California, whose ban on the chemical went into effect on February 6, have banned the pesticide. Sen. Udall (D-NM), sponsor of the “The Protect Children, Farmers and Farmworkers from Nerve Agent Pesticides Act of 2019” (S. 921) said in response to Corteva’s announcement, “The science on chlorpyrifos is clear and unambiguous, and it has no place on our food or in our fields.” Advocates continue to work on state, federal, and agency action to ban chlorpyrifos use.

On February 19, the Oregon house passed H.B. 4109, a ban on chlorpyrifos, in a vote of 32-24. Under HB 4109, aerial pesticide applications of chlorpyrifos would be prohibited immediately, as would spraying within 300 feet of a school campus, before the a full ban takes effect in January 2022. Farmers would also immediately have to prevent workers from entering areas treated with the chemical for eight days. However, the bill allows exemptions on certain crops. Following the House floor vote, the bill has passed through the Senate Committee on Environment and Natural Resources. It now awaits a full Senate floor vote.

Last week, the Maryland Department of Agriculture announced that it would begin the regulatory process of phasing out the use of chlorpyrifos. The timing of this announcement is hardly coincidental, however, as the state legislature is currently considering a complete ban on chlorpyrifos. Earlier this month, a broad coalition of advocates testified in favor of the proposed ban, including Farmworker Justice and the Migrant Clinicians Network. The Smart on Pesticides coalition stated in response to the announcement, “The Hogan Administration’s sudden change of heart in favor of considering regulating the toxic pesticide chlorpyrifos is surprising, after three years of active opposition to legislation that would ban it. The proposal is not acceptable.” The sponsors of the legislation intend to continue work on the bills despite the announcement by the Maryland Department of Agriculture.

UC Davis Study on Farmworker and Employer Responses to Wildfire Smoke

California has increasing fire events that create an unsafe work environment for farmworkers. According to a recent study by UC Davis, employers and farmworkers know that they need to take measures to protect against smoke inhalation. However, few employers have a plan in place for when smoke events occur. Farmworkers are often unwilling to stop work because of economic concerns regarding lost wages. Last year, California OSHA enacted emergency regulations to protect farmworkers if the smoke index reaches a certain point. Cal OSHA is in the process of enacting permanent regulations and guidelines for wildfire protections for workers. Sen. Merkley (D-OR) introduced “The Farmworker Smoke Protection Act of 2019” in Congress last year (S.B. 1815). You can find our factsheet on the bill here.  

Farmworker Justice Update: 1/29/2020

 

DOL Releases New Joint Employer Rule  

On January 12, the Department of Labor (DOL) released a new final rule in the form of an interpretative regulation on joint employer liability under the Fair Labor Standards Act (FLSA). The new interpretation creates a four part test to assess whether a business should be considered a joint employer with another business. The purpose of the regulation is to narrow the circumstances under which joint employer status will be found. One of the consequences of this interpretation, if implemented, would be that where a larger business, such as a farming operation, uses a labor contractor to supervise workers, only the labor contractor would be found liable for violating child labor, minimum wage or overtime rules. This definition is a marked change from prior interpretations by the courts and by the DOL itself. 

Farmworker Justice filed extensive comments on behalf of itself and other organizations opposing the proposed changes. We expect that most federal courts would not follow this interpretation when workers sue to enforce their rights and seek joint employer liability.  However, the DOL will follow it in conducting its investigations and litigation under the FLSA, which will encourage some businesses to use abusive labor contractors. These changes do not affect a previous, and appropriate, joint employer interpretation issued by the DOL under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the principal federal employment law for farmworkers. 

Top USDA Civil Rights Official Leaves Agency

Effective January 31, the U.S. Department of Agriculture (USDA) deputy assistant secretary for civil rights, Naomi Earp, will leave the agency. Earp has only been at the job for a year. Earp faced criticism during a House hearing where a Representative accused her of mismanaging the office intended to be a champion for the underserved. Of the 300 civil rights complaints filed by employees in fiscal year 2019, only 2 resulted in a finding of wrongdoing. Additionally, Earp had made several controversial comments relating to alleged sexual harassment within USDA. Neither the agency nor President Trump has announced a successor yet.  

New Trade Deals Move Forward

China

On January 15, Trump signed phase one of a new trade deal with China. Among the new trade provisions is an agreement that China will purchase $32 billion in agricultural products over the next two years. The new deal has received criticism as it leaves two thirds of the tariffs on Chinese goods coming into the United States in place, which some describe as a hidden tax. Similarly, the phase 1 deal did not reduce the tariffs on U.S. agricultural goods going into China, which President Trump claims will come off in the Phase 2 deal. There is also the caveat that China will buy the goods “based on market conditions.” This worries some farmers who do not believe the market will change much under the new deal. USDA Secretary Sonny Perdue stated that the new China purchases would alleviate farmer’s current need for aid from the U.S. government to stay afloat.

USMCA

On January 16, the Senate passed the U.S.-Mexico-Canada Agreement (USMCA), which will replace the previous North American Free Trade Agreement (NAFTA). Some of the agreement’s new provisions expand the dairy market in Canada, and others demand that Mexico expand labor protections for workers, including migrants and women. Opponents of the bill, including some labor and environmental groups, think that the new deal does not go far enough in protecting workers and the environment. The bill passed through Congress with bipartisan support, with a vote of 89-10 in the Senate and 385-41 in the House. Trump has not signed the trade deal as of the writing of this update.

Temporary Restraining Order Placed on Part of New York Farmworker Rights Law

On December 30, 2019, a coalition of New York dairy and vegetable farmers filed a lawsuit against implementation of the “Farmworkers Fair Labor Practices Act,” a new state agricultural labor law that took effect on January 1. The new law gives New York farmworkers the right to unionize, be paid overtime pay (after 60 hours in a week) and take at least one day off per week for the first time in the state’s history. Gov. Cuomo signed the historic legislation in July 2019. The groups behind the lawsuit are not challenging the provisions that allow for overtime and at least one day off per week. Rather, they want clarification on the collective bargaining piece of the legislation, which they claim runs counter to federal law. The judge temporarily blocked one aspect of the collective bargaining law. As a result, for the time being, the right to unionize will not apply to supervisory personnel. There will be additional court proceedings in February.

New Colorado Overtime Rules Exclude Farmworkers

On January 22, the Colorado Department of Labor and Employment released new overtime rules extending overtime pay to additional occupations. However, little will change for farmworkers as agricultural employees are still exempt under both federal law and the new state rules. One positive change is that farmworkers now have a required 10 minute break for every 4 hours worked. The agency said it chose not to expand overtime to farmworkers because they are exempt under federal law.

 

Update on Farmworker Health and Safety

Public Charge Litigation Update

On January 27, the U.S. Supreme Court overturned a nationwide injunction by the 2nd Circuit Court of Appeals that had prevented the Trump administration from implementing its public charge rule. The Supreme Court’s 5-4 ruling means the rule could now go into effect although it remains unclear when the Administration will begin implementing it. Prior to the Supreme Court ruling, on January 8, the 2nd Circuit Court of Appeals in New York had denied the Administration's motion to stay (or temporarily lift) the New York District Court's nationwide injunction. FJ will continue to provide information as this process unfolds. The Protecting Immigrant Families (PIF) campaign has resources and messaging for community members around public charge. 

Under the Immigration and Nationality Act, the government may deny an application for immigration status to a person who “is likely at any time to become a public charge.” The new rule drastically changes the factors used to determine whether a person is “likely” to become a public charge in the future. It also changes the definition of “public charge.” The consequences are that many immigrants who contribute to our economy and support their families will be deemed unfairly to be a “public charge” and denied immigration status.  It is important, however, to understand what is in the rule and what is NOT in the rule, as described in our fact sheet.

ACA Open Enrollment Period for 2020 Ends

Open enrollment for healthcare.gov, the federal health insurance marketplace under the Affordable Care Act (ACA), ended in December 2019. According to the Centers for Medicare and Medicaid Services (CMS), approximately 8.3 million individuals selected or were automatically re-enrolled in health insurance plans. This total is slightly less than last year; however, there were more new enrollments than last year, despite cuts to outreach and in-person assistance/navigator programs and the repeal of the individual mandate. Data is not yet available for the state-based marketplaces (including California, Colorado, Connecticut, Massachusetts, New York, and Washington, among others). Final numbers should be available in February. 

Fifth Circuit Rules Against the ACA

On December 18, the Fifth Circuit ruled part of the Affordable Care Act unconstitutional and remanded the rest to the district court. The individual mandate was ruled unconstitutional and will no longer apply unless the Supreme Court overturns the ruling. However, the Fifth Circuit did not rule on whether the rest of the ACA withstands a constitutional test. Pro-ACA organizations consisting of the House of Representatives and a coalition of several states filed an appeal with the Supreme Court for an expedited hearing, but that request was denied on January 21. That decision means that the appeal will be heard in October 2020 at the earliest, pushing the final ruling past the upcoming November 2020 election.

States Debating Chlorpyrifos Ban

On January 20, a bill that would ban most uses of chlorpyrifos was introduced in the Washington legislature. Mint, onion and sweet corn growers would still be able to use the chemical under the bill. Other farmers could apply for an exemption, too, but they would have to alert neighbors prior to spraying and warn that exposure to chlorpyrifos could harm young children and fetuses. Sen. Christine Rolfes introduced the bill, SB 6518. The ban would begin January 1, 2021 for products with chlorpyrifos as the active ingredient. However, users have until December 31, 2025 to ask permission from the state to use chlorpyrifos with restrictions.

In Oregon, a pesticide working group met on January 23. During the meeting, a proposed bill was discussed for banning chlorpyrifos. The Oregon legislature has attempted to ban the chlorpyrifos in the past to no avail. The bill would work to ban the sale of chlorpyrifos over the next two years. PCUN and Oregon AFL-CIO are leading this bill. HB 4109 already has several sponsors and cosponsors, but has not been formally introduced.

The Maryland legislature will also consider a ban. The proposal has been introduced in past legislative sessions, and groups are hopeful that this year the legislature will take action. S.B. 300 and H.B. 229 will be heard in committee in February. Farmworker Justice has been assisting activists in Maryland and other states in this effort.  Farmworker Justice is also a plaintiff in federal litigation against the EPA for its refusal to ban chlorpyrifos.

Farmworker Justice Update: 11/13/19

 

Farm Workforce Modernization Act Introduced

            On October 30, Reps. Zoe Lofgren (D-CA) and Dan Newhouse (R-WA), introduced the “Farm Workforce Modernization Act of 2019.” This bipartisan legislation, H.R. 5038,  was the result of complex negotiations between members of Congress, farmworker advocates, including the UFW, UFW Foundation, and Farmworker Justice, and agricultural employer organizations.   

Of utmost importance, the legislation would recognize the important contributions of farmworkers to our nation's food and agriculture systems. It would eliminate the constant fear of deportation by enabling hundreds of thousands of farmworkers and their immediate family members to obtain a lawful immigration status and a pathway to citizenship. At least half of the nation’s roughly 2.4 million farmworkers are undocumented immigrants. With legal status and a path to citizenship, farmworkers would be better able to improve their wages and working conditions and challenge serious labor abuses. This would result in a more stable farm labor force, and greater food safety and security to the benefit of employers, workers, and consumers.

The bill also would revise the existing H-2A visa program to address some farm worker and employer concerns with the program. Farmworker advocates have pressed for reforms to reduce widespread abuses under this flawed program, while agricultural employers have lobbied heavily to remove most of its modest labor protections. The compromise codifies many of the existing protections in the program and includes some important new protections for farmworkers, but also contains various difficult concessions that were made in order to reach a bi-partisan agreement. Because the bill, if passed, would improve significantly the lives of hundreds of thousands of farmworkers and their family members, Farmworker Justice supports the Farm Workforce Modernization Act of 2019.  We urge you to contact your Members of Congress and ask them to support the bill.

DACA Goes to the Supreme Court

            On November 12, the fate of Deferred Action for Childhood Arrivals (DACA) was heard in the Supreme Court. Farmworker Justice stands with all recipients of DACA and joined an amicus brief challenging the Trump administration’s rescissions of the program and highlighting the DACA enrollee’s reliance interest in the DACA program.

November 21 Appropriations Deadline Approaching

November 21 marks the deadline for the current continuing budget resolution, which was passed at the end of September.  According to reports, Congress is expected to extend the deadline for another month, until approximately Dec. 20.

DOL Releases Fourth Quarter H-2A Data

The Department of Labor (DOL) recently released 2019 fourth quarter data on the H-2A program. The program’s growth continues, with an increase of 10.8%, bringing the H-2A program to a record 257,666 worker positions certified for FY 2019. Another noticeable change was that California now sits as one of the top four H-2A program users, beating out North Carolina, which previously held the fourth spot, by nearly 2,000 workers. The top states in descending order are Florida, Georgia, Washington, California, and North Carolina. As always, very few applications were denied. This year saw only 57 denials of the 1,974 applications submitted.

Article Highlights Lack of Overtime Pay for Farmworkers

On November 6, Civil Eats released an article highlighting the exclusion of farmworkers from overtime pay under federal law. The article notes that some states are beginning to address the discrimination farmworkers face in access to overtime pay. New York and California have both passed legislation through their state legislatures that establishes overtime pay protections for farmworkers, with California phasing in overtime pay after 40 hours a week and New York providing for overtime pay after 60 hours per week. In Washington state, a class action brought by farmworkers is challenging the exclusion of farmworkers from overtime pay as unconstitutional. The court held oral arguments on October 24th and a decision is expected in the next 4-6 months. As noted by Columbia Legal Service’s Lori Isley, “Excluding farmworkers who are doing some of the most dangerous work in our state violates their fundamental rights.”  

Meanwhile, at the federal level, Sen. Kamala Harris and Rep. Raul Grijavala re- introduced “The Fairness for Farmworkers Act,” H.R. 1080, earlier this year. Farmworker Justice supports this bill.  

Workers’ Rights Advocates Look to Chobani to Improve Dairy Farm Conditions

            On November 5, Forbes wrote about the conditions on dairy farms and the attempts to bring the yogurt company Chobani into efforts to improve labor rights for dairy workers. Dairy workers experience dangerous conditions on the job with long hours, low pay and few benefits, and no access to protections such as overtime pay (unless, as noted above, farmworkers are in one of the few states that provide any overtime protections to farmworkers). Organizers in New York are attempting to unionize workers to improve conditions, and they are hoping that Chobani, as a large buyer of dairy products, will step in to demand better conditions on the farms from which they purchase products. Chobani entered into an agreement with Fair Trade USA to address issues regarding dairy farmworkers, but the unions criticized the FTUSA system as weak on worker empowerment.  Separately, Chobani demurred on getting directly involved in New York state politics to help pass the farmworker labor law (S.6578) that was passed last session, but they are in the process of rolling out their Milk Matters plan by 2025, which includes workers’ rights.   

El Salvador TPS Holders Receive One Year Work Visa Extension

Temporary Protected Status (TPS) is granted to individuals from a country where it is temporarily unsafe for them to return for reasons such as natural disaster or war. Following action by the Trump administration to end TPS status for many countries, despite ongoing safety issues in the countries, the administration was enjoined in October 2018 from ending TPS for El Salvador, Haiti, Nicaragua, and Sudan. Following that, USCIS published a notice earlier this year with plans to follow the court order but still end the program for the above countries.      

On October 28, El Salvador and the U.S. announced an agreement regarding TPS holders in the United States. The U.S. will extend TPS status for those from El Salvador for one year, moving the ending deadline to January 2, 2021. Other countries including Haiti, Sudan, Honduras, Nepal, and Nicaragua are also currently protected until 2021, but that protection could end as soon as six months after the abovementioned injunction is lifted if the administration wins the pending court case.   

 

Update on Farmworker Health and Safety

EPA Announces Proposed Changes to the AEZ  

            On November 1, the EPA published a proposal to reduce the Application Exclusion Zone (AEZ), which is a buffer zone around pesticide applications meant to help avoid human contact, either directly or through drift. The proposed rule would restrict the AEZ to just within the farm owner’s property as well as exempt certain individuals, such as the farm owner’s family members and easement workers, from certain AEZ protections. This change puts workers and bystanders at increased risk. Fields are often close to each other or to public areas, and refusing to acknowledge that workers and others can be close by while not strictly on the property being sprayed, will likely lead to increased exposures.

California Fires Disrupt and Endanger Farmworkers

            In late October, a wildfire started in Sonoma County leaving hundreds of farmworkers without homes and wages. The large wildfires growing increasingly common in California are also endangering farmworkers’ health. The advice given to residents during times of high smoke is to remain indoors and limit exertion, but that is almost impossible when the work is in the fields lifting heavy boxes of grapes and other agricultural products. California failed to pass a smoke protection act in the previous session, but the state did put in emergency protections in July. These protections require an employer to check the air quality before and during work, and if it rises above a certain threshold the employer must either move the workers or provide smoke masks. However, the masks make breathing difficult. After the fire erupted, officials allowed growers to harvest the last of their grapes. Advocates worried that farmworkers, who are mainly Spanish speakers, were not receiving adequate safety information. Earlier this year, Senator Merkley introduced the federal Farmworker Smoke Protection Act of 2019 (S. 1815), which would provide protections to farmworkers in such emergencies. Farmworker Justice supports this bill.      

The Department of State Released a Proposed Rulemaking on Public Charge

            On October 10, the Department of State (DOS) published an interim final rule to align the requirements on U.S. foreign consulates with those finalized by Department of Homeland Security (DHS) earlier this year. The DHS rule is currently enjoined, but that ruling does not directly affect this rulemaking. DOS revised its Foreign Affairs Manual last year, and it does not appear that the agency has plans to repeal those changes in favor of this new rule. Farmworker Justice submitted comments.

ACA Health Insurance Open Enrollment

            Open enrollment for 2020 health insurance coverage through the ACA marketplaces opened on November 1 and runs through December 15 in most states. Lawfully present farmworkers, including H-2A workers and their families are eligible to enroll in health insurance coverage through the marketplace and for tax credits and cost-sharing reductions to reduce their monthly premiums and co-pays. While there is no longer a federal tax penalty for those who do not have health insurance, some states do have a tax penalty in effect. For more information about health insurance options, go to healthcare.gov or your state’s marketplace website. Materials for farmworkers on the ACA can be found on FJ’s website. We also encourage you to reach out to your local health center where there are certified enrollment assisters who can help enroll interested farmworkers.

Farmworker Justice Update: 10/21/19

 

H-2A International Recruitment Fraud Puts Workers into Debt

Under the H-2A temporary agricultural worker visa program, it is unlawful for recruiters to charge recruitment fees to workers. Nevertheless, it is all too common for recruiters in the H-2A program to charge workers high fees in exchange for connecting them with potential employment in the United States. Moreover, fraud and misrepresentation are also common problems, with workers facing scams and costs associated with employment opportunities that never materialize. Last January, more than a hundred people in Guatemala fell victim to one such scam, paying thousands of dollars over a year, only to arrive at the U.S. Embassy and find out they had been scammed. The fraud and other abuses in the H-2A program are particularly significant as the U.S. government has sought to promote the H-2A program in response to the migration crisis in Guatemala. Essentially, the U.S. government is taking steps to funnel potential migrants into the exploitative worker-2A program, rather than addressing the humanitarian crisis causing individuals to flee their home countries and ensuring our asylum and refugee systems work as they are intended to. The H-2A program is not an immigration program- it is a temporary visa program with no path to immigration status or citizenship. The H-2A program is a flawed and abusive program and will not help migrants seeking to build a stable life in a safe country away from persecution. 

California Law Creates Opportunities for More Farmworker Housing

On October 7, California Governor Newsom signed AB 1783 into law. The new law sets forth standards and resources to build new farmworker housing in rural communities. The law has two parts. First, it subsidizes farmers who build housing on their land. The housing will be run by a third party and must remain affordable for 35 years. The second part of the law prohibits the funds from being used to build dormitory housing, which is the type of housing often favored by employers to house H-2A workers. H-2A workers can use the new housing units, but the style of housing must not emulate that of a bunkhouse. Agricultural producers oppose the new law. Meanwhile, worker advocates believe that more housing could help ease the housing shortage currently plaguing rural America.

November Appropriations Deadline Approaching as Funding Deal Remains Elusive

November 21 marks the deadline for when the continuing resolution passed at the end of September, which extends funding for FY 2019, is set to end. Congress must either pass another continuing resolution or a budget for FY 2020 by that date. Farmworker Justice continues to monitor the appropriations process given our concern about a harmful rider on the House FY 2020 DHS appropriations bill, which would expand the H-2A program to year round agricultural employment.  As of today, no funding agreements have been made public.  

DACA Recipients Encouraged to Renew Status before Supreme Court Hearing

On November 12, the U.S. Supreme Court will hear whether DACA will continue protecting individuals who came to the U.S. as children. Advocates strongly encourage  individuals to renew their status as soon as possible to make sure they are better protected from a potentially adverse Supreme Court decision. Farmworker Justice joined other advocates in an amicus brief submitted to the Supreme Court supporting DACA recipients.

Former Acting DHS Head McAleenan Departs Agency

On October 11, Acting Department of Homeland Security (DHS) Secretary Kevin McAleenan announced his resignation. McAleenan never received Senate confirmation after he assumed the position following former DHS Secretary Kirstjen Nielsen’s departure in April 2019.  During his tenure as Acting Secretary, McAleenan implemented some of President Trump’s most hardline policies including reducing the number of migrants allowed in the country through the remain in Mexico policy, allowing a historically low number of refugees into the country, rolling out the public charge rule, and ending the policy of releasing immigrant families from detention into the U.S. McAleenan tried to distance himself from President Trump’s policies even as the agency he oversaw implemented them. Acting U.S. Citizenship and Immigration Services (USCIS) Director Ken Cuccinelli is the leading candidate to take over the position. Cuccinelli recently made national news by suggesting that the famous poem found on the Statute of Liberty was intended to mean that only immigrants who can “stand on your own two feet” are welcome into the United States.

 

Update on Farmworker Health and Safety

Several Courts Issue Injunctions Stopping Implementation of Public Charge Rule  

The Trump administration’s final public charge rule is currently prohibited from implementation as a result of litigation. The rule was slated to go into effect on October 15, but on October 11, three injunctions went into effect across the country, followed by two more the following week.

The first nationwide injunction came from the Southern District of New York on October 11. The plaintiffs in that case are five organizations that work to aid immigrants, as well as the governments of New York, New York City, Connecticut, and Vermont. The same day, a U.S. District Court in Washington also granted a nationwide injunction. The plaintiffs in that case are Washington and 13 other states: Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island.

Also on October 11, a judge in California issued a more limited injunction applicable to San Francisco city and county, Santa Clara county, California, Oregon, the District of Columbia, Maine, and Pennsylvania, or to anyone who is part of a household that includes a person from those areas. Farmworker Justice was one of the plaintiffs in this action. Overall, the case included three different actions including several advocacy organizations and government entities.

Soon after, on October 15, an Illinois federal judge issued a similarly limited preliminary injunction, applicable only in Illinois, while a judge in Maryland issued another nationwide injunction on the rule.

Given that several of the injunctions issued have nationwide applicability, the public charge rule cannot currently be implemented anywhere in the country, unless and until the nationwide injunction is lifted. For a summary of the final public charge rule and its potential impact on farmworkers, please visit our website.

State Department Issues Related Public Charge Rule

Meanwhile, also on October 11, the State Department issued a proposed rule on public charge, meant to provide guidance to consular offices around the world about how to implement the DHS public charge rule discussed above. The State Department public charge rule will impose the same factors on immigrants applying to enter the U.S., aligning the State Department’s definition of public charge with the DHS public charge rule. Comments on this proposed rule are due November 12.

President Trump Issues a Proclamation Requiring Health Insurance to Enter the Country

On October 4, President Trump issued a presidential proclamation stating that starting November 4, 2019 individuals seeking to immigrate to the U.S., who do not have health insurance or the ability to pay their medical bills, will be denied entry. Farmworker Justice does not believe that it will affect H-2A workers or other nonimmigrant visa applicants.    

California Reaches Agreement Banning the Sale and Use of Chlorpyrifos

Starting on February 6, 2020 chlorpyrifos will no longer be available for sale in California. Corteva Agriscience (Dow Dupont’s agricultural division), which is the maker of chlorpyrifos, recently reached an agreement with the state of California, in which the company agreed that they will no longer sell the pesticide in the state. Growers will no longer be able to possess or use the chemical as of December 31, 2020. Chlorpyrifos has been linked to brain damage in children while also raising environmental justice concerns as it mainly effects disadvantaged communities. After the California agreement became public, New York advocates reiterated their call for Governor Cuomo to finally sign a bill passed in the New York legislature this past session that would ban chlorpyrifos in the state. As of today, Gov. Cuomo still has not signed the bill. In 2018, Hawaii became the first state to pass legislation banning chlorpyrifos  at the state level.  FJ is currently involved in litigation against the EPA seeking a federal chlorpyrifos ban, in accordance with the agency’s own science regarding the chemical’s toxicity.

EPA Issues Draft Risk Assessments for Paraquat

On October 15, the Environmental Protection Agency (EPA) announced its draft risk assessments regarding Paraquat, an herbicide. In the past, scientific and health organizations have raised concerns that use of Paraquat may be linked to Parkinson’s Disease. However, in its draft risk assessment, the EPA claims that if the applicator follows the label instructions, such a risk does not exist. The risk assessment is currently open for comments, with a deadline of December 16. Earlier this year, Rep. Velazquez (D-NY) introduced “The Protect Against Paraquat Act of 2019,” H.R. 3817, which would ban the sale and use of Paraquat. FJ supports this bill.

EPA Creates Guide to Aid Translation of Pesticide Labels

On October 17, EPA announced a new guide to help manufacturers and individuals translate pesticide labels into Spanish. EPA regulations only require English labeling, but many of the individuals applying or working around pesticides are Spanish speakers. Farmworker Justice and other advocates have petitioned the EPA for years to require Spanish-language labels. While manufacturers are still not required to put Spanish labeling on their products, this guide provides a helpful tool for improving worker safety.  

Texas Has the Highest Rate of Heat Related Workplace Deaths in the Country, but the State Continues to Have No Heat Stress Protections for Workers

A recently published article in GateHouse Texas recounts a tragic incident that occurred in July 2017, when a man in his mid-twenties collapsed and later died while working on an excessively hot day. Earlier, his supervisor had denied him permission to go home even after the worker made clear that he felt ill. Texas has more heat related deaths in the workplace than any other state, but, like most states across the country, does not have adequate protections for workers against heat stress. At the federal level, OSHA has also failed to implement heat stress standards to protect workers despite calls from advocates. Meanwhile, people are dying as they work without breaks, water, and shade on hot days that will only get worse as the planet gets hotter. Representative Judy Chu’s (D-CA) bill, “The Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2019” H.R. 3668, which directs OSHA to institute protections for workers from heat stress was introduced a few months ago in the House. FJ supports this bill.

Farmworker Justice Update: 09/27/19

Farmworker Justice and Other Advocates Submitted Comments to the DOL Regarding Proposed H-2A Program Changes

           On September 24, Farmworker Justice and many other organizations and advocates responded to the Department of Labor’s (DOL) published request for comments to proposed changes to the H-2A temporary foreign agricultural worker program (the notice published in the Federal Register in July). The DOL proposed many changes to the H-2A program, including a new calculation for wage rates, shifting some transportation costs to workers, expanding the program to pine straw and reforestation workers, weakening recruitment requirements for U.S. workers and allowing employer applications with staggered entry dates for guestworkers, among many other proposed changes.

Office of Foreign Labor Certification (OFLC) Released H-2A Quarterly Report

            OFLC’s third quarter report on the H-2A program is now available. While the FY 2018-’19 growth rate for the third quarter was slower than that from FY 2017-’18, DOL still certified a record 82,776 H-2A workers for this quarter. Theories for the slowing growth rate of the program include that use of the program is maturing and that this was a particularly tough harvest year.   

DOL Released Final Rule on Their Proposal to Switch From Newspapers to Online Recruitment

On September 20, DOL published its final rule on modernizing recruitment requirements in the Federal Register. In order to qualify for H-2A workers, an employer must demonstrate that no U.S. workers are available for the job, and as part of this process, DOL has certain recruitment requirement that employers must fulfill. The new rule switches from a requirement that employers advertise available positions in a newspaper to an electronic system managed by DOL. The agency will publish employer job notices on their new online system, SeasonalJobs.dol.gov. The agency will also instruct state workforce agencies to pass the job openings to organizations that provide employment and training services to workers who are likely to apply for the jobs, and/or to place written notices at physical locations where such workers are likely to gather. A concern with the new requirement is that U.S. workers may not know about the online system, so the DOL must reach out to the farmworker communities letting them know of the change. The rule will go into effect on October 21.

Senate Confirmed Anti-Worker Secretary of Labor

            On September 26, the Senate confirmed a new Secretary of Labor, Eugene Scalia. He has come under fire throughout his confirmation process for being pro-business and anti-worker. He has a history as an attorney representing companies seeking to avoid liability for violating employment and health and safety laws and seeking to minimize the protections under those laws. An agency intended to protect workers is now directed by an individual with a commitment to business’s positions regarding employment at the expense of workers’ law. The Senate confirmed Scalia on a 53-44 vote.   

A Federal Judge Put a Temporary Stay on a DOL Ordered 50% Wage Increase for Blueberry Pickers

On September 5, a federal judge blocked a wage increase that had been ordered by the DOL for Washington blueberry pickers. The employees at Zirkle farm were to receive a wage increase from 50 to 75 cents per pound. Zirkle sued in the U.S. Court of Eastern Washington, claiming that the wage increase was too much of a burden, and it would have to leave blueberries in the field and eliminate hand picking from future harvests, which would put farmworkers out of work. The injunction will stay in place until the conclusion of the trial. 

  

Update on Farmworker Health and Safety

After Years of Decreased USDA Oversight, Rural Public Housing is Falling Apart

On September 23, NBC News released a story detailing the crumbling conditions of the Okeechobee Center in Belle Glade, Florida. The public housing is meant for farmworkers and falls under USDA jurisdiction. However, the building is in decrepit condition with mold, holes in the walls and ceilings, and insects and rodent infestations. Over the years, USDA oversight has loosened as priorities and resources shifted away from the housing inspection program. The property managers submitted a plan earlier this year to the agency on how they would improve the conditions, but part of the plan included a rent increase on the residents. Farmworkers put food on America’s table and deserve to have safe, clean housing for themselves and their families.   

Pesticide Exposure Makes Around One Hundred Workers Sick in California Fields

            This June, around 100 California farmworkers were exposed to pesticides in two separate incidents. While the number of affected workers is high, what is even more troubling is the ongoing fear that workers feel. When they are exposed, many workers feel that they will die, and they worry that the effects will be permanent. In California, safety policy enforcement is up to the counties, and incidents rates are going up. There was a 10% increase from 2014 to 2015 as the latest published numbers.

Farmworker Justice Update - 08/22/19

Trump Administration Proposes Major Changes to H-2A Agricultural Guestworker Program:  Comments Due September 24

           On July 26, the Department of Labor (DOL) published proposed changes to the H-2A temporary foreign agricultural worker program regulations in the Federal Register. Interested parties may submit comments to the proposal through September 24. The DOL proposes many changes to the H-2A program, including a new calculation for wage rates, shifting some transportation costs to workers, expanding the program to pine straw and reforestation workers, weakening recruitment requirements for U.S. workers and allowing for employer applications with staggered entry dates for guestworkers, among others. The Farmworker Justice summary of the major proposed changes is available on our website. There are many more changes which need careful review.  FJ has drafted model comments that farmworker, immigration, labor, social justice and other organizations can use in drafting their own comments. FJ is also currently working with partner organizations to draft a lengthier set of in-depth comments. For more information, please contact FJ Staff Attorney Iris Figueroa at [email protected].

DOJ and DOL Formalize New Partnership to Protect U.S. Workers in H-2A Visa Program

                On July 31, the Department of Justice (DOJ) and the Department of Labor (DOL) entered into a Memorandum of Understanding (MOU) to better protect U.S. workers from discrimination under the H-2A program. The MOU increases communication and training opportunities between the two agencies to decrease discrimination against U.S. workers. This MOU is part of the Civil Rights Division’s “Protecting U.S. Workers Initiative,” which was launched in 2017 and is aimed at targeting, investigating, and taking enforcement measures against companies that discriminate against U.S. workers in favor of foreign visa workers.

New Jersey Enacts a New Wage Theft Law to Protect Workers

                 On August 6, acting New Jersey Governor Sheila Oliver signed S. 1790 into law. This wage left law provides greater protection for workers, in order to ensure that they receive the pay they are due. The bill enhances enforcement of New Jersey’s wage and hour laws by holding employers accountable for unpaid wages, benefits, or overtime as required by law through increased damages and fines. It makes victims of wage theft eligible to receive both the wages owed and liquidated damages of 200 percent of wages owed.

 680 Workers Arrested in Mississippi Worksite Raids on Poultry Plants

                  On August 7, ICE raided several companies in Mississippi, arresting around 680 workers. Four poultry plants were raided in what is considered one of the largest raids ever in a single state, and the largest since President Trump took office. ICE officials arrested individuals and loaded them into buses before taking them away for processing at a local National Guard base. With no warning on the raid, children of the detained individuals were left at schools and homes with no guardians or caretakers. Since then, some individuals have been released, while around 350 are still incarcerated and awaiting a hearing. However, many of those released are now struggling to make ends meet after losing their jobs.  The businesses which employed the workers have not been charged with violating immigration law as of this update, but several dozen of the workers have been indicted for immigration-related offenses.   

Washington Farmworkers Participate in March for Dignity

                Approximately two hundred marchers gathered on August 4 outside a prison in Ferndale, WA that is being used as an immigration detention center. They then proceeded to march 14 miles, ending at Crystal View Raspberry Farm, where an H-2A worker died after being forced back to work despite feeling ill. The march sought to highlight abuses in the agricultural labor system. As stated by Rosalinda Guillen, Director of Community to Community: “The Trump administration is targeting our local community, deporting people who have been living here for years. Then growers complain there aren’t enough workers and begin using the H-2A program to bring in guest workers. It is a vicious revolving door of exploitation.”

A Farmworker Provides a Firsthand Account of His Experience

                Omar Garcia Garcia was interviewed by The Nation as part of an ongoing oral history project revealing the stories of immigrants. Omar is a guestworker from Michoacán, Mexico, and has worked in the U.S. for five growing seasons. He continues to come back, leaving his family for months at a time, because he can use the earnings to support them and give them a better life. He grew up in a rural community, and he loves to work in the fields. However, he describes his first season as especially difficult because of the adjustment to the new surroundings and culture. However, he could not return home because of the debt he accrued in order to get the job opportunity. He also describes the difficult working conditions and the uncertainty of whether there will be a job next year from an employer. 

Car Drivers Harassing Head Start Buses with Migrant Workers’ Children

                Idaho officials report that car drivers are following and harassing school buses with migrant worker children headed to early education programs. The local organization which operates the programs plans to conceal the bus signage containing the word “migrant”, as well as adding cameras to enhance security. Similar incidents have been reported in other states, including Indiana.

Update on Farmworker Health and Safety

Department of Homeland Security Finalizes Public Charge Rule

                 On August 14, the Department of Homeland Security (DHS) finalized its rule on public charge regarding applications for immigration status. The final rule radically changes the definition of public charge to make it far more difficult to gain approval of immigration applications. It expands the list of public benefits defined under public charge to include SNAP (food stamps), Medicaid (with exceptions), and housing assistance. It also defines and adds positive and negative values to the factors under the totality of circumstances test, which is used to determine an applicant's likelihood of becoming a public charge. Under the new test, factors such as low-wages and lack employer-provided health insurance will be negative factors.  Farmworkers in the U.S. and H-2A workers applying to enter the U.S. will be affected by this rule.

                 The rule is set to go into effect on October 15. FJ is a plaintiff in a lawsuit filed by a coalition of organizations shortly after the rule’s publication that seeks to invalidate it. A fact sheet on the final public charge rule and its potential impact on farmworkers can be found on FJ’s website. FJ also issued a statement in response to the rule that can be found here. FJ is working with national, state, and local partners, including the Protecting Immigrant Families campaign, to share information about the public charge rule. Contact Alexis Guild, Senior Health Policy Analyst, at [email protected], with any questions or for more information. 

Farmworker Justice and Allies Sue EPA Over Chlorpyrifos Decision 

                On August 7, Earthjustice, Farmworker Justice, and other environmental and farmworker organizations, filed suit against the EPA for its failure to ban chlorpyrifos. The chemical has been linked to brain damage in children and harm to farmworkers. The agency’s decision to continue to prioritize corporate profit over children’s health and safety is unconscionable in light of the scientific evidence. Another lawsuit was filed in the 9th Circuit on the same day with six states - California, Washington, Massachusetts, Maryland, New York, and Vermont - acting as plaintiffs. Hawaii and Washington, D.C. are also expected to join the state lawsuit.

EPA Will Not Require Cancer Warnings on Products Containing Glyphosate

                On August 8, the U.S. EPA announced that it would not require producers to put a cancer warning on products containing glyphosate. The EPA claims that its research and information show that the substance does not cause cancer in humans, and therefore, the label is unnecessary. The EPA reviewed glyphosate earlier this year after California attempted to put the warning on products sold in the state. California’s Safe Drinking Water and Toxic Enforcement Act requires companies to warn consumers of carcinogens as determined by several agencies and organizations including the International Agency for Research on Cancer (IARC). IARC found that glyphosate likely causes cancer, which triggered California’s requirement. The state has not enforced the labeling requirement yet because a ruling in an ongoing lawsuit placed an injunction on glyphosate labeling for now. Recently, a jury ordered Monsanto to pay $289 million to a school groundskeeper who got terminal cancer after using Roundup, which contains glyphosate.          

 

Farmworker Justice Update - 07/11/19

Year-Round H-2A Amendment Included in House DHS Appropriations Bill

On June 11, the House Appropriations Committee passed an H-2A year-round rider on the Department of Homeland Security (DHS) appropriations bill for FY 2020, via voice vote. Reps. Newhouse (R-WA) and Cuellar (D-TX) introduced the amendment, which allows H-2A workers to be admitted without regard to whether they provide labor or services that are of a temporary or seasonal nature. Reps. Roybal-Allard (D-CA), DeLauro (D-CT), Torres (D-CA), and Kaptur (D-OH) spoke in opposition to the amendment. FJ strongly opposes both the substance of this amendment and the method by which it was adopted. 

Given the contentiousness of the DHS appropriations bill, as well as the current Congressional schedule, the DHS appropriations bill is unlikely to be voted on by the full House before September. The Senate must also pass its own DHS appropriations bill. Therefore, it is unclear whether there will be a final DHS appropriations bill passed by both chambers by September 30, which is when FY 2019 funding is set to expire (with FY 2020 beginning on October 1, 2019). FJ is currently working alongside our allies in both the labor and immigration movements to ensure this harmful H-2A rider is not included in the final FY 2020 DHS appropriations bill. 

Sen. Paul Reintroduces H-2A Expansion Bill 

Last month, Sen. Rand Paul (R-KY) reintroduced the “Paperwork Reduction for Farmers and H-2A Modernization Act,” S. 1887. A companion bill, H.R. 3319, was introduced in the House by Rep. Kelly (R-MS) the same day. The bill currently has four co-sponsors in the House and no co-sponsors in the Senate. The bill is an updated version of a similarly named H-2A expansion bill that was introduced by Sen. Paul in the previous Congress. While the legislation is framed as a bill that would “streamline” the H-2A application process, it includes provisions that would fundamentally change the program, such as expanding H-2A to a variety of year-round industries, including dairy, equine, and seafood processing. The bill also includes a “safe harbor” provision insulating any employers who use third-party preparers from penalties for errors or omissions in their application. FJ opposes this bill. 

Farmworker Justice Freedom of Information Act Lawsuit

On June 28, Farmworker Justice filed a federal lawsuit against the U.S. Department of Agriculture for failure to comply with its obligation to disclose documents under the Freedom of Information Act (FOIA).  FJ is co-counseling the case, Farmworker Justice v. U.S. Department of Agriculture, with Public Citizen. FJ has been seeking documents regarding the Trump Administration’s interagency task force on the H-2A agricultural guestworker program.  The task force met with agribusiness representatives and apparently recommended changes to the H-2A program regulations. 

Settlement Involving Florida Strawberry Farm that Discriminated against U.S. Workers

Last month, the Department of Justice (DOJ) announced a settlement agreement against H-2A employer Sam Williamson Farms Inc. (SFW), a strawberry farm in Dover, Florida. The DOJ’s investigation found that SFW had discriminated against U.S. workers for its strawberry harvesting, informing its existing U.S. workers that it would hire H-2A workers instead for its following season. SFW eventually hired more than 300 H-2A workers and no U.S. workers. Under the settlement, SFW must pay $60,000 in civil penalties and up to $85,000 in back pay to eligible U.S. workers. The investigation was carried out under the DOJ’s “Protecting U.S. Workers Initiative.” 

Article on Labor Trafficking in Agriculture 

A recent Texas Observer article details the abuse and horrific working and living conditions endured by agricultural workers who are victims of labor trafficking, including many who are in the country on H-2A visas. The article notes that though sex trafficking is a more well-known problem, labor trafficking is also widespread, especially in certain industries such as agriculture. The article highlights the specific vulnerability of H-2A workers, who are bound to an employer who controls their visa, housing and worksites. As stated by Texas RioGrande Legal Aid (TRLA) attorney Stacie Jonas, guestworkers are nervous about doing anything that might make them deportable or make it difficult for them to get another visa again in the future. 

Rep. Roybal-Allard Reintroduces Federal Bill to Protect Children Working in Agriculture 

Last month, Rep. Roybal-Allard (D-CA) introduced the “Children’s Act for Responsible Employment and Farm Safety of 2019” (CARE Act), H.R. 3394, which establishes protections for children working in agriculture. The bill has been introduced in past Congresses. The CARE Act would amend the Fair Labor Standards Act (FLSA) in order to strengthen the provisions relating to child labor. While retaining exemptions for family farms, it would prohibit the employment of children under age fourteen (14). Fourteen (14) and fifteen (15) year-olds could be employed only for certain agriculture jobs, during limited shifts and outside of school hours. The bill also states that workers must be at least eighteen (18) years of age to perform hazardous tasks. Additionally, the bill requires data collection on work-related injuries, illness, and deaths of children under age 18 in agriculture, as well as an annual report by the Secretary of Labor.

New York Passes Landmark Farmworker Legislation 

Last month, the New York state legislature passed legislation that will significantly improve farmworkers’ labor rights. A version of the bill, entitled the “Farmworker Fair Labor Practices Act” had been proposed in the state legislature without achieving passage for over two decades. The final bill, which has been signed by Governor Cuomo, represents a compromise between labor groups and farm employers. The bill provides farmworkers with overtime pay, collective bargaining rights, unemployment insurance and expanded workers’ compensation. The bill, S.6578, states that farmworkers are entitled to form a union and engage in collective bargaining free from retaliation. In addition, a union can be certified as the bargaining representative based on “card check,” i.e., a majority of workers signed dues deduction authorization forms.  Allowing card check as an alternative to holding a formal representation election option can be helpful to reducing companies’ anti-union campaigns. The legislation also enables a union to obtain a decision from an arbitrator on the terms of a collective bargaining agreement if the company and union reach an impasse. This opportunity will reduce companies’ ability to refuse to bargain in good faith for the purpose of avoiding a contract. However, the final bill has language prohibiting strikes, based on farmers’ assertions that their impact could be severe during peak seasons. As noted in previous FJ updates, the state appellate court in New York recently declared that a state labor law excluding farmworkers from the right to organize and collectively bargain violates the state constitution’s guarantee of that right.

The bill also establishes overtime pay for farmworkers over 60 hours as well as the option of either a day of rest each week or receiving overtime pay for the seventh day of work. The original bill called for overtime pay over 40 hours. The 60-hour threshold is still a significant improvement, however, as New York farmworkers previously had no right to overtime pay. Only a handful of states in the country offer overtime pay to farmworkers, despite the fact that farmworkers often work more than 40 hour weeks. This is due to a discriminatory and historical exclusion of farmworkers from federal labor legislation. You can read more about this exclusion and a proposed federal bill to remedy it on the FJ website. FJ’s President Bruce Goldstein testified in support of farmworkers’ rights at a NY State Senate hearing at the request of the bill’s lead sponsor, Senator Jessica Ramos of Queens, NY.  Congratulations to Sen. Ramos, and the many coalition members who fought this struggle, including the Rural and Migrant Ministry, Worker Justice Center of New York, NY ACLU, the Robert F. Kennedy Center for Justice and Human Rights, the NY State AFL-CIO, the Hispanic Federation, and many others.

Update on Farmworker Health and Safety

House Bill Calls for Federal Protections against Heat Stress 

Yesterday (July 10), Reps. Chu (D-CA) and Grijalva (D-AZ) introduced the “Asuncion Valdivia Heat Illness and Fatality Prevention Act,” H.R. 3668. The bill is named after a farmworker who tragically died from heat stress. It calls on the Occupational Safety and Health Administration (OSHA) to issue a federal standard on the prevention of excessive heat in the workplace, including the provision of adequate shade, water and rest breaks, as well as information and training on heat stress prevention and symptoms. Unfortunately, too many employers do not offer reasonable protections against heat stress and many farmworkers are reluctant to speak up about unsafe conditions. Climate change is further exacerbating the problem, as temperatures continue to rise nationwide. FJ supports this bill.

FJ President Bruce Goldstein spoke during a press conference on the bill’s introduction about the importance of these common sense measures for protecting farmworkers. Earlier today, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “From the Fields to the Factories: Preventing Workplace Injury and Death from Excessive Heat,” which can be viewed here. Arturo Rodriguez, former President of the UFW, was one of the witnesses at the hearing and discussed the impact of this occupational risk on farmworkers. As mentioned in previous FJ updates, FJ joined Public Citizen and the UFW, along with a coalition of over 200 individuals and groups, in filing a petition to OSHA last year asking for a federal standard to protect workers from heat stress. OSHA has not yet responded to the petition. There is currently no federal heat standard to provide workers with protections from dangerous heat conditions. 

Senate Bill Seeks to Protect Farmworkers from Smoke Exposure

Last month, Senator Merkley (D-OR), introduced “The Farmworker Smoke Protection Act of 2019,” S. 1815. During wildfires, farmworkers often have to work quickly in smoky conditions to harvest crops and protect them from smoke damage, and many do so without proper respiratory protection. The bill would help ensure that farmworkers are protected from hazardous wildfire smoke by requiring employers to provide N95 or other NIOSH-certified respiratory protection to farmworkers who may be exposed. The use of the equipment would be mandatory when the air quality reaches a dangerous level. The bill also requires training and education materials on how to properly use the equipment to be made available to farmworkers, in a language that they understand. Additionally, the bill directs OSHA to develop and publish an official standard to protect employees affected by exposure to wildfire smoke. FJ supports this bill.

Two Mass Pesticide Exposure Incidents Within Two Weeks in Fresno County  

On June 18, approximately 60 workers were affected by a pesticide exposure incident in Dinuba, California. A pesticide that was being sprayed in a nearby orchard drifted into the vineyard where the workers were. Three of the workers had to be hospitalized and the rest were decontaminated on site by emergency responders. Less than two weeks later, on June 27, approximately 75 workers were exposed to pesticides, also in Fresno County, and also leading to the hospitalization of three people. This second incident also seems to have involved drift. Investigations are still underway for both incidents. 

Article on Valley Fever in Farmworker Communities 

A recent Civil Eats article explores the prevalence of valley fever in California’s farmworker communities. Valley fever is a chronic illness caused by a soil fungus called cocci when it becomes airborne, which causes flu-like symptoms and can be fatal. Cases of the disease increased by 10% in California between 2017 and 2018. New cases are especially concentrated in the San Joaquin valley, where many of the state’s farmworkers live. The causes and impact of the disease are still being studied, but working outside and living in areas with high particle pollution (which is often exacerbated by agricultural practices) seem to increase the risk. African-Americans and Latinos seem to be more likely to have severe symptoms. Additionally, climate change is believed to be expanding the territory where the cocci fungus can be found, which will likely lead to an increase in the number of cases not just in California but in other states as well. 

Fifth Circuit Court of Appeals Hears Arguments in Texas v. US

On July 9, the Fifth Circuit Court of Appeals heard oral arguments in Texas v. US. The panel of judges will decide whether to uphold a lower district court ruling that deemed the ACA unconstitutional after Congress eliminated the tax penalty in 2017. The ACA is being defended in court by 20 states and the District of Columbia, led by California Attorney General Becerra, along with the House of Representatives. If the ACA is struck down, an estimated 20 million people could lose health coverage and many of the health and consumer protections, including pre-existing coverage protections, would no longer be in effect. FJ will share updates on this case as the appeals process continues.

California Expands Medi-Cal Coverage to Undocumented Young Adults

On June 27, Governor Newsom signed California’s 2019-2020 budget. The budget expands Medi-Cal coverage (California’s Medicaid program) to undocumented young adults up to age 26. In 2015, Medi-Cal expanded coverage to undocumented children (0-19 years old). In addition to expanding Medi-Cal coverage, the budget also expands health insurance premium support for individuals and families enrolled in Covered California (California’s health insurance marketplace) and reinstates an individual mandate penalty. More information about the California 2019-2020 budget can be found here.

FJ’s Illustrated Diabetes Brochure for Farmworkers

FJ is excited to share its newest publication for farmworkers, “Life of the Party: Making Healthy Choices with Diabetes” available in English, Spanish, and Haitian Creole on our website. It is a comic style brochure that provides information about how to shop for food and make healthy food choices with diabetes. It encourages community members with diabetes to not hide away from being part of community celebrations. FJ is working with our partners across the country to promote diabetes education and testing among farmworker communities. Contact Alexis Guild at [email protected] with any questions, feedback, or for more information.

Farmworker Justice Update - 06/07/19

Farmworker Justice Update: 06/07/19

Dream and Promise Act Passed in House

On June 4, the U.S. House of Representatives passed the “American Dream and Promise Act of 2019,” H.R. 6, by a vote of 237-187. The bill provides critically needed immigration protections and a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients. Passage of the bill is an important first step towards fixing our broken immigration system. You can read FJ’s press release on the bill’s passage here.

New Bill Proposes Temporary Immigration Status for Year-Round Agricultural Workers

On May 16, Rep. Chris Collins (R-NY) introduced the “Helping Labor Personnel on Farms Act,” H.R. 2801. The bill only has 4 co-sponsors. The “HELP Farms” Act would allow current undocumented agricultural workers in year-round employment, who have worked for their employers for at least two years, to adjust their status to a two-year, non-renewable temporary work permit. Eligible workers include those in year-round agricultural industries, such as dairy, sheepherding, livestock, equines, beekeeping, meat processing and seafood processing. Within two years after enactment, the bill directs the Department of Labor (DOL) to issue regulations under the H-2A program to include work that is done on an annual rather than seasonal basis.

The bill is short-sighted, unrealistic and unfair.  It recognizes that there is an experienced, undocumented agricultural labor force that needs work authorization, but then offers only a limited temporary work permit, with no path to citizenship. The two-year temporary permit is non-renewable, meaning that an employer would lose its experienced farmworkers after this period.  Workers would then have to either return to their homeland or remain in the U.S., once again in undocumented status. Without any assurances of the continued ability to remain in the U.S. many workers would be reluctant to come forward to apply for this temporary status. This most recent H-2A expansion bill highlights the way in which too many politicians and employers view agricultural workers: as disposable inputs. Immigration status should not be a mere tool for conveniently acquiring or disposing of farmworkers. Legislators need to think about the real-life impact of these policies on farmworkers and their families.  

New York Court Rules Farmworker Collective Bargaining Exclusion Unconstitutional

On May 23, the state appellate court in New York declared that a state labor law excluding farmworkers from the right to organize and collectively bargain violates the state constitution’s guarantee of that right to working people.  The decision resulted from a case brought in 2016 by dairy worker Crispin Hernandez, along with the Workers Center of Central New York and the Worker Justice Center of New York, represented by the New York Civil Liberties Union. To their credit, the NY Governor and Attorney General declined to defend the state law in court. However, the New York Farm Bureau intervened to defend the exclusion. A lower court had initially dismissed the workers’ case in 2018, leading to the successful appeal. The Farm Bureau is expected to appeal the recent decision to the state’s highest court, the Court of Appeals.

New York Legislation on Equal Labor Rights for Farmworkers Still Pending

The NY state litigation is particularly timely given that the New York legislature is currently considering passage of the Farmworkers Fair Labor Practices Act, which would codify agricultural workers’ right to organize and collectively bargain, among other important labor rights protections such as the right to overtime pay. As stated in a recent NY Daily News article, if advocates and consumers really care about food policy, they must ensure that those who actually grow our food are treated with the basic dignity they deserve. An upstate New York newspaper recently published a letter to the editor by FJ President Bruce Goldstein, who criticized an editorial that opposed the legislation as being “rushed.” The letter pointed out that farmworkers have been waiting since the 1930s for the labor protections other workers have been granted.

Dairy Workers in Washington Doubly Damaged

A large dairy operation called Mensonides Dairy in Mabton, Washington was sued by its employees for wage theft and then filed for Chapter 11 bankruptcy so that it could reorganize.  The ability of the farmworkers to ever collect their stolen wages is in doubt. The United Farm Workers is assisting the workers. A Yakima Herald article about the case was helpful publicity but mentioned low milk prices for dairy farmers. The paper later published a letter to the editor by FJ’s Bruce Goldstein rejecting the implication that low milk prices might explain wage theft and criticizing the unbalanced discussion of economic issues.  The letter, noting that these abuses arose at dairy farm that belongs to the Darigold system, called for greater corporate responsibility in the dairy supply chain.

DOL Conducting Education Campaign for Agricultural Employers in Southeast U.S.

DOL WHD recently announced that it is engaged in an education and enforcement initiative to boost compliance by the agricultural industry in the Southeastern U.S., including the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. From January 2018 through March 2019, WHD investigators found violations in 90% of the 345 investigations of agricultural employers they concluded. As a result of these investigations, 20 Southeast growers and farm labor contractors have been debarred from the H-2A program.

Human Trafficking Case Involving Mexican Workers in Wisconsin and Georgia

Several recent cases highlight the vulnerability of H-2A guestworkers and the prevalence of abuses in the program. Last month, a federal indictment was filed in a case of human trafficking involving workers in Wisconsin and Georgia. Five people who worked for the labor contracting entities “Garcia & Sons” and “C & D Harvesting,” have been charged for actions including threatening workers, confiscating their passports, and giving them fraudulent resident cards and social security numbers. Some of the workers were at Wisconsin-based Borzynski Farms, which has stated they did not know the workers were being abused and that the farm is no longer working with these labor contractors. Moore Farms in Georgia was also a client, but the farm owner stated he did not believe the contractors were abusing the workers. The application filed for the workers stated that they would be working in Georgia, but they were then transported to Wisconsin. The charges came after a multiyear human trafficking investigation by several law enforcement agencies including the FBI, the DOL Office of Inspector General, Homeland Security Investigations (HSI) and the Racine Police Department. United Migrant Opportunity Services (UMOS) provided emergency assistance and support to the workers.

Georgia H-2A Workers Subject to Terrible Living and Working Conditions

The Southern Poverty Law Center (SPLC) is representing three guestworkers in an administrative complaint against their employer. Two of the workers report being subject to sexual harassment by their employer, a South Georgia contractor, on multiple occasions, with the final incident occurring at gunpoint. The three guestworkers were recruited from Mexico to harvest blueberries, but unbeknownst to them, would also be required to work in tobacco and pine straw harvesting. The employer’s violations against the workers include illegally charging recruitment fees, illegal wage deductions for housing and visa charges, wage theft, dangerous working conditions, inadequate housing conditions, gender discrimination, sexual harassment and retaliatory threats. This case is reflective of the abuse and exploitation guestworkers are too often subjected to by their employers. The three guestworkers seeking legal action want to prevent the contracting company from exploiting other workers in the future.

Recent DOL Enforcement Actions against Agricultural Employers

A recent DOL Wage and Hour Division (WHD) investigation revealed systemic violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) as well as the provisions of the H-2A program by various Arizona labor contractors. As a result, a U.S. District Judge ordered Cargo LLC and Christian Gomez Bueno to pay $48,771 in civil penalties and $26,229 in back wages. The judge also barred Jose Carlos Gomez, who is Gomez Bueno’s father and did business as Union Harvest, from ever again serving as a farm labor contractor. The defendants failed to provide employees with safe transportation, including egregious vehicle safety hazards such as worn tires, missing mirrors, faulty lights, and inoperative horns. They also failed to pay employees all the wages they had earned when due and to maintain accurate records of hours worked, among other violations.

 Another recent investigation involved the DOL’s Occupational Safety and Health Administration (OSHA), which recently cited Duda Farm Fresh Foods Inc. of Florida for exposing employees to workplace safety hazards. Among other violations, OSHA found that the company failed to provide the required respirator fit test and safety training to employees operating ammonia refrigeration systems. The company faces $95,472 in penalties after a worker required medical treatment due to an anhydrous ammonia leak in the farm's packing house. The investigation was done pursuant to an OSHA National Emphasis Program focused on facilities with highly hazardous chemicals.

Update on Farmworker Health and Safety

Idaho Farmworkers Exposed to Toxic Substance

        Over Memorial Day weekend, a group of farmworkers and their families were exposed to a toxic substance, resulting in over 20 people having to receive medical treatment. The specific toxic substance has not yet been determined, but the Idaho State Department of Agriculture is currently investigating the incident. The patients suffered flu-like symptoms and one of them became unconscious. Some of the workers, who had showered and changed after arriving home from work, had less severe symptoms. The workers told investigators that they had not received any training on pesticide safety. As mentioned in the article describing the incident, the recently revised federal Worker Protection Standard (WPS) requires that workers be provided with pesticide safety information, including information about how to limit take-home exposure.

California State Assembly Passes Farmworker Housing Act of 2019

        On May 24, the California State Assembly passed A.B. 1783, a bill intended to address the housing shortage among farmworkers in the state. The bill would streamline the building of farmworker housing on agricultural land. Under the bill, state financial support of farmworker housing will be focused on family-oriented projects and the state of California will be prohibited from funding housing for H-2A workers. To qualify, the farmworker housing must be managed by an approved nonprofit and meet a number of requirements aimed at ensuring it is suitable. Supporters of the legislation include sponsor United Farm Workers, the Center for Farmworker Families, Santa Cruz and San Benito counties, and the city of Salinas. The bill will now be sent to the California State Senate for approval.

Public Water Systems in Some California Farmworker Communities Serve Unsafe Water

 As detailed in a recent article in The New York Times, low-income farmworker families in California’s Central and San Joaquin Valleys’ home tap water systems spew toxic water contaminated by chemical fertilizers, dairy manure, and arsenic, while the crops around them have access to sophisticated irrigation systems. According to data from the California State Water Resource Control Board, more than 300 public water systems expose more than one-million Californians to unsafe drinking water. The majority of affected residents belong to small communities who are unable to support the costs necessary to alleviate the problem. Governor Newsom has proposed a tax on urban water districts and the agriculture industry to redevelop the infrastructure in districts with unsafe water, but the proposition has received significant pushback.

Farmworker Justice Award Reception

Please join us for Farmworker Justice’s Award Reception on June 13, at The Hamilton Hotel in Washington, D.C.  Honorees include Arturo Lopez, Diana Tellefson and Earl Dotter. More event details are available on our website. Your support makes possible our work on labor rights, occupational safety, immigration, health and access to justice.

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