Pesticides

Farmworker Justice Update - 03/15/19

Farmworker Justice Update: 03/15/19

New Bill Protecting DACA, TPS and DED Recipients Introduced in Congress

On March 12, Congresswomen Lucille Roybal-Allard (CA), Nydia Velázquez (NY), and Yvette Clarke (NY) introduced the “Dream and Promise Act of 2019,” H.R. 6. The bill provides a pathway to citizenship for “Dreamers” - DACA (Deferred Action for Childhood Arrivals) recipients and DACA-eligible individuals. Dreamers would be provided conditional permanent resident status and would need to fulfill an education, employment or military track to adjust to permanent resident status. The bill also allows TPS (Temporary Protected Status) and DED (Deferred Enforced Departure) recipients the ability to adjust their status and gain permanent lawful status. The bill is a “clean” bill, meaning it does not include any funding for immigration enforcement or address any other immigration issues other than these specific categories of immigration protections.

Currently, over a million people are in danger of losing existing protections due to the Administration’s attempts to terminate each of these programs. Liberian DED recipients are currently facing the most imminent risk, as their protection is set to expire at the end of this month (March 31). With regards to DACA, the government is currently accepting renewal applications pursuant to ongoing litigation, but is not accepting any new applications for the program. United We Dream has resources available for those who wish to renew their DACA status. For TPS recipients, their status depends on their specific country of origin. TPS protections for Sudan, Nicaragua, Haiti, El Salvador, Honduras and Nepal, all of which had been set to be terminated by the Administration, are being maintained for the time being pursuant to ongoing lawsuits. A few other countries also have a TPS designation, but unlike the ones mentioned above, have not been terminated by the Administration. There are also separate efforts underway to create a new TPS designation for Venezuela.

Senate Rejects Trump’s Border Emergency Declaration

 Yesterday (March 14), the U.S. Senate voted 59-41 to overturn President Trump’s declaration of a national emergency at the southwestern border. The resolution is the same as the measure passed earlier by the House. This is the first time in history that Congress has voted to block a presidential emergency declaration. President Trump has promised to veto the measure.

White House Releases Proposed FY 2020 Budget

Earlier this week, the White House released its proposed FY 2020 budget. The proposal would significantly cut funding to most government agencies while also increasing the country’s defense spending, as well as allocating over $8 billion for a border wall. It would cut funding for major government programs including Medicare, Medicaid, Social Security, SNAP (the Supplemental Nutrition Assistance Program) and TANF (Temporary Assistance for Needy Families). It also includes a 31% cut in funding to the EPA (Environmental Protection Agency), 10% cut in funding to the DOL (Department of Labor) and 12% cut to USDA (Department of Agriculture). Some of the funds cut from the USDA include a reduction in funding for rural housing programs, for which farmworkers may be eligible. The proposed budget is unlikely to become law because Congress’ actual FY 2020 appropriations bills will probably differ significantly from the President’s proposal, as they have the past two fiscal years.

Update on Farmworker Health and Safety

Andrew Wheeler Confirmed as EPA Administrator

Last month, the Senate confirmed Andrew Wheeler, a former coal lobbyist, to be the Administrator of the EPA (Environmental Protection Agency). Wheeler had been serving as Acting Administrator since the previous Administrator, Scott Pruitt, stepped down last year amidst various corruption scandals. Throughout this career, Wheeler has advocated for a deregulatory agenda.

PRIA Signed into Law, Safeguarding Worker Protections  

On March 8, President Trump signed into law the “Pesticide Registration Improvement Extension Act” (PRIA), S. 483, which passed unanimously in both the House and Senate. The legislation provides much-needed funding for the EPA’s pesticide evaluation and registration process. The final bill contains language safeguarding key provisions of the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rules, which had previously been targeted by the EPA for potential roll-backs. Pursuant to the law, the EPA is now prohibited from making revisions to the WPS and CPA until at least October 2021 (other than limited revisions to the WPS’ application exclusion zone). As stated by Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, “we are pleased that PRIA has passed and that it underscores the importance of worker safety as a vital part of pesticide registration. We are especially grateful for the efforts of Senators Udall, Stabenow and Roberts to preserve worker protections from attempts by the EPA to eliminate them.”

Proposed Changes to the WPS’ Application Exclusion Zone (AEZ)

Just five days after the enactment of PRIA, the EPA sent proposed revisions to the Application Exclusion Zone (AEZ) requirements in the WPS to the Office of Management and Budget (OMB) for regulatory review. The WPS defines the AEZ as the area surrounding the pesticide application equipment that must be free of all persons other than appropriately trained and equipped handlers during pesticide applications. This provision in the rule is intended to provide a measure of protection to workers and bystanders from off-target drift during a pesticide application. If an applicator sees an unprotected person near the application equipment, the applicator must suspend the application until that person leaves the area. Following the OMB review and a subsequent review by the USDA, the proposed changes will be made public and open for a comment period of at least 90 days. Farmworker Justice plans to draft comments to the proposal, along with environmental and worker advocates.

State-Level Proposals to Ban Chlorpyrifos

Various states are currently undertaking efforts to ban the highly toxic pesticide chlorpyrifos. As noted in previous FJ updates, the EPA was set to ban this pesticide at the federal level, but reversed course in early 2017. FJ is currently involved in litigation regarding this decision. As the litigation continues, there are various efforts underway to ban the use of chlorpyrifos at the state level. The Maryland legislature is currently considering a bill to ban chlorpyrifos, and has already held various hearings on the issue. The state of Connecticut is also considering a bill banning chlorpyrifos, with a hearing set to take place on Monday, March 18. The Oregon state legislature is similarly considering a bill banning chlorpyrifos, with an upcoming hearing on Wednesday, March 27. Please sign here to support the Oregon bill.

Farmworkers, Climate Change and Heat Stress

A recent Civil Eats article details the increasing risks from climate change faced by farmworkers, including dehydration and heat stroke. The federal government has no regulations in place to protect workers against heat stress. As noted in previous FJ updates, Public Citizen, along with various advocacy organizations including FJ, petitioned OSHA (the Occupational Safety and Health Administration) last year to request federal heat stress regulations. We have not yet received a response to the petition.

Farmworker Justice Update: 02/21/19

Farmworker Justice Update: 02/21/19

Fairness for Farm Workers Act Would Grant Farmworkers Overtime Pay

On February 7, Senator Harris (CA) and Representative Grijalva (AZ) introduced the “Fairness for Farm Workers Act of 2019,” S. 385/H.R. 1080. The bill would address the discriminatory treatment of farmworkers under the 1938 Fair Labor Standards Act (FLSA) by extending overtime protections to farmworkers and removing many of the remaining minimum wage exclusions still applicable to agricultural work. Under the legislation, people working in agriculture would eventually be entitled to time-and-a-half pay for working more than 40 hours in a week. Farmworker Justice strongly supports this legislation. For more information on the Fairness for Farm Workers Act, please see our fact sheet.

Agriculture and Immigration Policy Debate Heating Up

The Los Angeles Times recently published a letter to the editor by FJ’s president Bruce Goldstein, entitled “Immigrant farm laborers deserve more than just 'guest worker' protections.”  The letter was in response to an op-ed by the president of the American Farm Bureau Federation, Zippy Duvall, arguing for changes to the H-2A guestworker program.

Washington State Bill Could Eventually Fund H-2A Program Oversight with Employer Fees  

State lawmakers in Washington recently introduced SB 5438, a bill that would create a new office to monitor the H-2A program within the state’s Employment Security Department (ESD). The ESD has stated that its funding is insufficient to adequately oversee the H-2A program in the state, which has grown more than 1,000 percent over the past decade. Farmworker advocates, including Farmworker Justice, have contended that more resources are needed to carry out prevailing wage surveys and other obligations. The original bill established fees from farmers for each H-2A application, as well as a per-employee fee. However, last week the state’s Senate Committee on Labor and Commerce approved a revised version of the bill that would delay the implementation of employer fees until 2022. In the meantime, the office would be funded by additional appropriations. The revised bill also calls for a cost analysis in 2021 to determine whether fees are needed. Employer groups claim the delay in fee implementation will give them more time to lobby the federal Congress for funding. The bill is still being considered in the state Senate and is scheduled for a public hearing in the Committee on Ways and Means on February 25.

Trump Signs Federal Appropriations Bill and Declares National Emergency on Southern Border

On February 15, President Trump signed an appropriations bill providing funding for the remainder of FY 2019 (through September 30, 2019) for several government departments. The bill includes $1.375 billion for the construction of “barriers” along the southern border as well as funding for upgrades to ports of entry. It also includes a modest increase of $6 million for subsidies to build farm labor housing, among many other provisions. On the same day, President Trump also issued a presidential proclamation declaring a national emergency at the southern border, in an attempt to secure billions more in funding for wall construction from other sources. Multiple lawsuits challenging the emergency declaration have already been filed.  Congress is reportedly planning to introduce a resolution against the declaration tomorrow (February 22).

William Barr Confirmed as Attorney General

On February 14, William Barr was confirmed by the U.S. Senate to be the next U.S. Attorney General, by a vote of 54-45. He was formally sworn in later that day. Barr previously served as Attorney General under President George H.W. Bush. Barr has long been a proponent of broad Presidential authority and authored a memo before his confirmation questioning the ongoing Mueller investigation.

“Sensitive Locations” Legislation Introduced in House

On February 6, Representative Espaillat (NY) introduced the “Protecting Sensitive Locations Act of 2019,” H.R. 1011. The bill would codify and expand existing agency guidance limiting immigration enforcement actions at “sensitive locations” such as hospitals, schools and places of worship. The bill prohibits enforcement actions - including arrests, interviews, searches and surveillance - at these locations, except in extenuating circumstances such as a national security threat. The bill specifies that any medical treatment or health care facility, including community health centers, is considered a sensitive location. Early childhood education programs are also explicitly listed as sensitive locations. Additionally, the bill expands the types of sensitive locations to include courthouses, congressional offices and public assistance offices, among others.  Farmworker Justice supports this bill.

Update on Farmworker Health and Safety

Pesticide Safety:  PRIA Unanimously Passed in Senate

On February 14, the Senate unanimously passed the reauthorization of the Pesticide Registration Improvement Act (PRIA), legislation that provides much-needed funding for the Environmental Protection Agency (EPA)’s pesticide evaluation and registration process. The bill is supported by a broad coalition of stakeholders including industry representatives and environmental organizations. Farmworker Justice is a part of the PRIA coalition, and supports the bill’s funding for regulatory activities related to worker protection, including the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators (CPA) rule. The PRIA bill passed by the Senate last week is identical to the one previously passed in June 2018, which contains language safeguarding key provisions of the WPS and CPA rule. Both regulations had been targeted by the EPA for potential roll-backs, but the EPA recently withdrew these efforts. The House is scheduled to vote on PRIA early next week.  

Federal Chlorpyrifos Case to be Re-Heard by Larger Panel of Judges

Earlier this month, the 9th Circuit Court of Appeals granted the Environmental Protection Agency (EPA)’s request for another hearing in a case regarding chlorpyrifos, a highly toxic pesticide. The lawsuit, in which Farmworker Justice is a plaintiff (and which has been mentioned in previous FJ updates), asks that EPA ban the pesticide, in accordance with its own scientific findings. The agency had been set to ban the pesticide before reversing its decision in 2017. The case will now be re-heard and decided by a panel of 11 judges. The original panel of 3 judges that previously heard the case ruled that the EPA should ban the pesticide, which led to the EPA’s request for another hearing. In the meantime, use of the pesticide can continue, posing a significant health risk for farmworker communities.

Maryland Considering Legislation to Ban Chlorpyrifos

As litigation and advocacy regarding chlorpyrifos continues at the federal level, a bill banning the chemical has been introduced in the Maryland legislature. Chlorpyrifos is already banned for use in residential settings. Farmworkers also deserve to be protected from this highly toxic chemical. As stated in a recent editorial in the Baltimore Sun, doing nothing to ban chlorpyrifos will mean continued harm to children and others. An op-ed in the Delmarva Daily Times, co-written by Migrant Clinicians Network and Farmworker Justice, highlights the unique harm the pesticide poses to farmworkers and rural residents. Maryland lawmakers should side with human health and safety by supporting HB 275 / SB 270.

Article Highlights Mental Health Challenges for Farmworkers

A recent Huffington Post article discusses the mental health challenges faced by farmworkers, which are often exacerbated by their living and working conditions, as well as immigration status and lack of access to health care. As stated by FJ’s director of occupational and environmental health, Virginia Ruiz, mental health issues cannot be divorced from policy, particularly immigration and health care policy.

Farmworker Justice Resources on Access to Health for Farmworkers

Farmworker Justice recently released “The Unidos Initiative: Mobilizing to Eliminate Barriers to Health and Healthcare in Farmworker Communities.” This report summarizes the processes, findings and impact of the skin cancer prevention component of the Unidos initiative; a community mobilization program directed by FJ in AZ and CA. The report also identifies program gaps and discusses recommendations for building on the successes of this unique project. Additionally, FJ’s report with Harvard’s Center for Health Law and Policy Innovation, “The Promise of Telehealth,” discusses the current state of telehealth in the United States, opportunities that telehealth provides for improving access to health care for rural residents, and the unique position that community health workers occupy as potential facilitators of telehealth technologies in rural farmworker communities. Together, these reports provide a unique perspective on the effectiveness of community mobilization-based strategies, community health workers, and telehealth as means of providing accessible specialty care to farmworkers.

Farmworker Justice Update - 02/06/19

Farmworker Justice Update: 02/06/19

Legislation Regarding Farmworkers Introduced in 116th Congress

Agricultural Worker Program Act Would Provide Path to Citizenship for Farmworkers

On January 17, Senator Feinstein and Congresswoman Lofgren (both of CA) introduced the “Agricultural Worker Program Act of 2019,” (S. 175/H.R. 641). The bill is critically important for our nation’s food and agriculture system. Under the Trump administration, farmworker communities across the country are living and working in fear of immigration enforcement and deportation. If enacted, this legislation would alleviate that fear by providing farmworkers and their families an opportunity to earn legal immigration status. The legislation would provide a path to temporary legal status followed by lawful permanent residency for eligible farmworkers who meet agricultural work requirements. Immediate family members would also be eligible to obtain a “blue card” and lawful permanent residency. The bill is a bridge until comprehensive reform can be enacted and will provide desperately needed legal status for farmworkers while stabilizing the agricultural economy. You can find fact sheets summarizing the bill, in both English and Spanish, as well as a diagram detailing the application process, on our website. Please complete this form to sign your organization on to a letter asking Members of Congress to support this legislation. The bill currently has 61 co-sponsors in the House and 11 co-sponsors in the Senate.

BARN Act Would Weaken H-2A Program Protections

Also last month, Rep. Allen (GA) re-introduced the “Better Agricultural Resources Now (BARN) Act,” H.R. 60. The bill would eliminate important H-2A program requirements that serve to protect both U.S. workers and foreign guestworkers. Among its various provisions, it would eliminate guaranteed housing, decrease farmworker wages, limit worker access to legal help, expand the H-2A program to year-round jobs, and change oversight of the program from the Department of Labor (DOL), which is currently tasked with protecting workers’ rights, to the Department of Agriculture (USDA). You can find more information about the bill in our fact sheet. The bill currently has no co-sponsors.

Preliminary Injunction Hearing Held in Case Regarding H-2A Wage Rates

On January 28, U.S. District Judge for the District of Columbia Timothy Kelly held a hearing in the case of Peri & Sons Farms, Inc. v. Acosta. As noted in a previous update, this lawsuit, brought by the National Council of Agricultural Employers (NCAE), seeks to reverse the DOL’s implementation of the 2019 Adverse Effect Wage Rates (AEWRs) for the H-2A program and freeze wages at the 2018 levels, which are lower for most states. The United Farm Workers, represented by Farmworker Justice and the law firm Covington and Burling LLP, had filed a motion prior to the hearing seeking to intervene in the case, as its members would be affected by any decreases to the AEWR. Several individual farmworkers, represented by Texas Rio Grande Legal Aid, Inc. (TRLA) and Public Citizen, had also filed a motion to intervene.

During the hearing, Judge Kelly granted both motions to intervene from the farmworker representatives. The Judge then heard oral arguments. The government and the intervenors reiterated the legal analyses in their written briefs requesting denial of the motion for preliminary injunction and dismissal of the case. Additionally, the Judge asked the parties if they would agree to a simultaneous ruling on both the preliminary injunction and the merits of the case. After the hearing, the parties agreed to such a joint ruling. The parties are now awaiting the Judge’s decision, which should be issued soon.

New Jersey Passes Minimum Wage Law That Discriminates against Farmworkers

On February 4, New Jersey Governor Phil Murphy signed a bill to gradually raise the minimum wage in the state to $15. Under the bill, most workers will be entitled to receive $15 per hour by 2024.  However, the bill allows employers to pay farmworkers lower wages than other workers. Farmworkers would gradually reach just $12.50 an hour by 2024. Farmworkers would have a possibility of reaching $15.00 an hour by 2027, but only if recommended by certain government officials. Farmworker Justice was critical of this fundamentally unfair bill and signed on to a letter, led by the Comite de Apoyo a los Trabajadores Agricolas (CATA), asking the New Jersey Senate not to take this step back for farmworkers’ rights. The New Jersey bill highlights the need for federal legislation to address the discriminatory exclusion of farmworkers from basic minimum wage and overtime protections guaranteed to other workers.

Worker Strike in California Results in Rollback of Pay Cuts

Last month, a worker walkout and protest resulted in the rollback of planned pay cuts for orange pickers in California. The United Farm Workers supported the walkout. The “Wonderful Halos” mandarin orange company had announced that the rate for filling a bin of oranges would be decreased by five dollars, to the detriment of many workers. The company restored the previous pay rate as a result of the protest. However, various other issues raised by workers remain unresolved, including uncompensated time. Many of the farmworkers were hired through third-party labor contractors. Under California law, growers and contractors are equally responsible for labor issues.

Shutdown Ended, But Another Shutdown Possible After February 15 Deadline

On January 25, President Trump announced an end to the longest government shutdown in U.S. history, which lasted 35 days, without getting any funding for the construction of a border “wall.” In late December, Trump had refused to sign spending bills that had been passed by Congress because they did not provide $5.7 billion in funds for this purpose. As a result, there was serious financial harm endured by many government workers who worked unpaid or were idled, as well as harm to the general population from curtailed government services.

The continuing resolution which re-opened the government runs out on February 15. Trump has threatened to trigger another government shutdown if a bipartisan conference which has been convened to discuss border security is unable to reach an agreement by that date. Trump has also suggested the possibility of declaring a national emergency in order to secure the funds for “wall” construction. It remains unclear whether there will be an agreement reached by the bipartisan conference by the deadline, whether there will be another government shutdown, and/or whether Trump will declare a national emergency to secure wall funding.

Update on Farmworker Health and Safety

WPS and CPA Rule Revisions Withdrawn by EPA

On January 28, the Environmental Protection Agency (EPA) officially withdrew its proposed revision of certain protections in the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rule from review by the Office of Management and Budget (OMB). As noted in previous updates, these two rules, which provide key safeguards for farmworkers from toxic pesticide exposures, were in danger of being weakened through rulemaking by the EPA. Last month, Acting EPA Administrator Wheeler committed in a letter to Senators that the agency would stop its efforts to roll back certain elements of the rules. The letter also stated that the EPA is still considering a potential revision to the Application Exclusion Zone (AEZ) provision of the WPS, which provides protection to workers and bystanders from off-target drift. FJ will continue to work to preserve this protection, including through the submission of comments once the proposed changes are published.

In the meantime, FJ, along with various partner organizations, is working to ensure passage of a bill to reauthorize the Pesticide Registration Improvement Act (PRIA), which includes key language protecting both the WPS and CPA rule. As stated by Senator Udall, “[t]here is no reason why we cannot act to provide a legally-binding solution that protects these rules and protects farmworkers. Congress should move quickly to resolve this issue and pass [the] worker-friendly PRIA agreement.”  

More States Intervene in Texas v. U.S. ACA Case

Last week, four more states - Iowa, Michigan, Colorado, and Nevada - motioned to intervene in Texas v. U.S. As a result, twenty states, led by California, now support the defense of the ACA in the lawsuit. An appeal in the fifth circuit is pending but a decision is expected later this year. In the meantime, the ACA remains in effect as the appeals process moves forward. More information about Texas v. U.S. can be found here and in previous FJ blogposts.

CMS Proposes 2020 Benefit and Payment Parameter Rule for ACA Exchanges

On January 17, the Centers for Medicare and Medicaid Services (CMS) published its proposed 2020 Benefit and Payment Parameter Rule. This rule, issued annually, establishes standards for the ACA exchanges. It impacts consumer access to health insurance plans and in-person assistance, as well as tax credits and cost-sharing. The 2020 proposed rule further reduces the role of navigators in ACA enrollment. It eliminates the requirement that navigators provide post-enrollment assistance, including appeals and exemptions applications, and referrals for tax assistance. The navigator training will also be reduced, eliminating required training on topics such as: outreach and education methods and strategies, providing linguistically and culturally appropriate services, and working effectively with limited English proficient, rural, and underserved populations. A complete analysis of the proposed rule can be found on the Health Affairs blog. A CMS fact sheet on the proposed rule can be found here. The comment period on the proposed rule ends February 19.
 

Farmworker Justice Update - 01/11/19

Agribusiness Employers File Suit to Stop Implementation of 2019 AEWR

On January 7, the National Council of Agricultural Employers (NCAE), along with grower Peri & Sons Farms, Inc., filed a lawsuit in D.C. federal court seeking to stop the Department of Labor (DOL)’s implementation of the 2019 Adverse Effect Wage Rates (AEWRs) for the H-2A program. In order to ensure that U.S. workers are not adversely affected by the H-2A program, H-2A employers must offer the highest of five minimum wage rates: the applicable federal or state minimum wage; the local prevailing wage for that occupation; any collectively bargained wage rate; or the AEWR.

The AEWR is set annually by DOL based on the U.S. Department of Agriculture’s surveys of wages paid by agricultural employers.  The current formulation of the AEWR, which was reinstated in the 2010 H-2A regulations, was initially established under the Reagan Administration. The NCAE lawsuit seeks to stop the implementation of the 2019 wage rates and sought a temporary restraining order, which was denied on January 8. DOL had already announced the new AEWR rates for 2019 in December 2018. The new wages were set to be implemented on January 9, meaning that as of Wednesday (January 9) and for the time being, the 2019 AEWR rates are now in effect. However, litigation is ongoing and the judge will soon determine whether or not to grant a preliminary injunction stopping implementation of the new wages.

Also on January 9, the United Farm Workers union (UFW) filed a motion to intervene in the case, as its members would be affected by any decreases to the AEWR. Farmworker Justice is representing the UFW in this case, along with the private law firm Covington and Burling LLP, on a pro bono basis. If the growers’ lawsuit succeeds, many U.S. workers, as well as H-2A workers, will receive lower wages. The 2019 AEWRs for most states are higher than the 2018 rates, following a pattern of modest improvements over the past few years. This lawsuit is the latest example of agricultural employers admitting a tightening farm labor market, which should result in competitive wage increases, while seeking exemption from the law of supply and demand that applies to other businesses.

New Jersey Minimum Wage Law Might Discriminate Against Farmworkers  

New Jersey legislators are negotiating a potential bill to increase the state’s minimum wage to $15 an hour. However, a key lawmaker, NJ Senate President Steve Sweeney, is proposing to exempt farmworkers from the $15 per hour minim wage; instead subjecting them to a lower minimum of wage of $12.50 an hour. Sen. Sweeney represents an area of South Jersey with many farms. According to data from the Bureau of Labor Statistics, the median farmworker wage in New Jersey is currently between $11.70 and $12.92 an hour; thus, the “increase” to $12.50 would not be a wage increase in real terms for many farmworkers. $12.50 is also less than the 2019 H-2A program AEWR for the state of New Jersey, which is $13.15, further proof that the supposed pay increase would not represent a meaningful improvement on farmworkers’ current wages.

As stated by Farmworker Justice President Bruce Goldstein, this proposal would be “a continuation of a long history of discrimination against farmworkers.”  We also agree with CATA, a New Jersey nonprofit group that advocates for migrant farmworkers, that farm work is no less valuable than any other category of work, and farmworkers deserve the same minimum wage as any other worker.  It’s time to end the unfair and unequal treatment of farmworkers; not create new discriminatory exceptions from basic protections other workers enjoy.

Shutdown Continues as President Trump Insists on Border Wall Funding

Today marks day number twenty-one (21) of what may soon become the longest government shutdown in U.S. history. The partial shutdown is a result of President Trump’s insistence that Congress provide over $5.7 billion to fund the construction of a wall on the U.S.-Mexico border. Democratic Congressional leaders have stated that they will not provide any amount over $1.6 billion for border security (which was the amount in a previous Senate appropriations bill for FY 2019).  President Trump is also reportedly weighing whether to declare a national emergency along the border in order to bypass Congressional approval for funding for the wall. Meanwhile, nearly 800,000 federal workers have either been furloughed or have had to continue working without pay, affecting a wide range of government services.

Senate to Weigh William Barr Nomination for Attorney General  

The Senate Judiciary Committee is currently scheduled to hold confirmation hearings on January 15 and 16 for William Barr for the position of Attorney General. Earlier this week, Senate Minority Leader Chuck Schumer (NY) called on President Trump to withdraw Barr’s nomination, based on his previous criticism of the Mueller investigation. Barr previously served as Attorney General during the Administration of George H.W. Bush. A coalition of civil rights organizations recently expressed serious concerns regarding Barr’s nomination, given his past record on subjects ranging from criminal justice reform to LGBTQ and reproductive rights, as well as his anti-immigrant views. Some of his troubling anti-immigrant positions include his support for the current administration’s Muslim ban as well as his past role in detaining HIV-positive Haitian asylum seekers at Guantanamo Bay in the early 1990s.

Update on Farmworker Health and Safety

EPA Backs Off Plan to Weaken Worker Protection Rules

Last week, Acting Administrator Wheeler committed in a letter to Senators Carper (D-DE) and Barrasso (R-WY) to abandon EPA’s efforts to rollback critical elements of the Worker Protection Standard (WPS) and the Certification of Pesticide Applicators (CPA) rule, in exchange for Senate confirmation of various political appointees to the agency. After two years of efforts by environmental and worker rights advocates to defend the WPS and CPA rule before the EPA, the courts and Congress, and to ensure the rules’ effective implementation, this is a major breakthrough. The draft of the proposed rules that we have been opposing are currently under review at the Office of Management and Budget (OMB), and we will continue to monitor EPA’s actions to make sure the proposals are formally withdrawn. FJ will also continue its efforts to codify Wheeler’s promises in legislation early in this congressional session through language in the reauthorization of the Pesticide Registration Improvement Act (PRIA).

Wheeler’s letter also states that the EPA is still planning to propose a revision to the Application Exclusion Zone (AEZ) provision of the WPS, with a public comment period of at least 90 days. We fully expect EPA to propose harmful changes to the AEZ provision later this year. The AEZ provides a measure of protection to workers and bystanders from off-target drift during pesticide applications. FJ and partner organizations will work to preserve those protections, including through the submission of comments once the proposed changes are published.

Legislation Banning Chlorpyrifos Introduced in House

Earlier this week, Representative Nydia Velasquez (D-NY) introduced the “Pesticide Protection Act,” which would ban the sale of chlorpyrifos, a toxic chemical that has been linked to damaging health outcomes in workers, pregnant women and children. The bill, H.R. 230, currently has over 40 co-sponsors. The EPA was previously set to ban the use of chlorpyrifos under the Obama administration; however, it later reversed its decision under the Trump administration. Farmworker Justice, along with various environmental and worker rights groups, is currently involved in a lawsuit against the EPA in which the 9th Circuit Court of Appeals has ordered the agency to ban chlorpyrifos. However, EPA has appealed that decision and the litigation is still ongoing.

Labor Contractor Fined by OSHA after Worker Heat Stress Death

Last month, Georgia agricultural labor contractor Beiza Brothers Harvesting was fined $12,934 by the Occupational Safety and Health Administration (OSHA) for conditions that led to the death of a worker from heat stress. Previous FJ updates detailed the conditions leading up to the tragic death of the 24-year old worker while picking tomatoes in extremely high temperatures. OSHA also issued additional citations against Beiza Brothers related to a failure to train employees about hazardous chemicals and unsafe equipment, but did not levy additional fines for these citations.

Update on Texas v. U.S. and Status of ACA

After Judge O’Connor issued a stay in the Texas v. U.S. lawsuit, the 17 Democratic Attorneys General who defended the Affordable Care Act’s (ACA) provisions filed an appeal with the Fifth Circuit on January 3. The Department of Justice (DOJ) filed its own appeal the following day. The Fifth Circuit has yet to schedule an initial briefing. As the appeals process moves forward, the ACA and its provisions remain in effect. Meanwhile, the House of Representatives filed the first of two motions to intervene in defense of the ACA.

A recent poll conducted by Protect Our Care shows that more than half of voters oppose the recent decision in Texas v. U.S. and 59% want to see the ACA remain in effect with fixes made as necessary. On January 3, the Centers for Medicare and Medicaid Services (CMS) released its final enrollment report that showed 8.4 million consumers enrolled in health insurance through healthcare.gov during the 2019 open enrollment period. This number is only 4% less than enrollment last year, despite the additional cuts to outreach and navigator programs. Enrollment is still open in a handful of states including Colorado (until January 12), California (January 15), and New York (January 31).

Farmworker Justice Update - 12/18/18

Public Comment Deadlines for Proposed H-2A Program Changes

As a reminder, there are various opportunities to comment in response to Federal Register notices related to the H-2A program, with deadlines next week. As mentioned in previous updates, the Department of Labor (DOL) issued notices of proposed rulemaking regarding the requirements for recruiting U.S. workers by employers seeking certification in both the H-2A and H-2B temporary guestworker visa programs. The deadline for submitting comments for both notices is now December 28 (it was previously December 10 but was extended).

DOL has also announced a proposed revision to the forms used for employer certification under the H-2A temporary agricultural worker visa program. The two forms being revised are Form ETA-9142A, which is the form employers use to apply for H-2A workers, and Form 790, which is the agricultural clearance order that is circulated to inform prospective job applicants of  job terms and instructions. The deadline for submitting comments to this proposal is December 24.

Florida H-2A Labor Contractor Fined for Violation of Program Requirements

Florida H-2A labor contractor SOL Harvesting LLC was recently fined $53,428 by the Department of Labor (DOL)’s Wage and Hour Division (WHD). Among various violations of the H-2A program requirements, DOL WHD found that SOL Harvesting failed to provide employees copies of their work contracts and reimburse them for transportation and visa fees. Workers also were not provided with housing that met minimum safety and health standards. The bulk of the amount paid by the contractor constituted back wages, as DOL only assessed a civil money penalty of $2,368 for the H-2A program violations. SOL Harvesting had hired approximately 100 workers to harvest cucumbers, cabbage, kale and onions at Scott’s Farms in Mt. Dora, Florida. To our knowledge the farm operator was not penalized and the labor contractor has not been debarred from the H-2A program.

USDA Releases Report on Farm Labor Markets in the U.S. and Mexico

The U.S. Department of Agriculture (USDA)’s Economic Research Service (ERS) recently released a report entitled “Farm Labor Markets in the United States and Mexico Pose Challenges for U.S. Agriculture.” The report finds that the U.S. farm labor market is showing signs of tightening, including increases in farm wages, more widespread use of the H-2A temporary agricultural worker visa program, and a shrinking supply of farm labor from Mexico. Among the potential options for employers to respond to a tighter labor market proposed by the study are raising wages, improving benefits and working conditions, increased mechanizing of crops, switching to less labor-intensive crops and greater employment of guestworkers. The report emphasizes guestworker status as a mechanism for recruiting future farmworkers, rather than offering potential agricultural workers, or current undocumented workers, the opportunity to adjust their immigration status or have a path to U.S. citizenship.  

Various Appropriations Bills Expire December 21, Government Shutdown Possible

Earlier this month, Congress passed a temporary spending bill for FY 2019, called a continuing resolution (CR), to fund various government agencies, including the Department of Homeland Security (DHS) and the Department of Agriculture (USDA), through December 21. Despite opposition from Democrats and reluctance among some Republicans to press the issue, President Trump is insisting on $5 billion in funds for border wall construction in the DHS appropriations bill and has stated he would be “proud” to shut down the government if that amount is not agreed to. A government shutdown could lead to many federal employees being furloughed, including at DHS, USDA, the Department of Justice and the State Department. As noted in previous FJ updates, two of the proposed FY 2019 appropriations bills have troubling language regarding the H-2A temporary agricultural worker visa program. FJ has been advocating against a possible rider in the DHS appropriations bill which would expand the H-2A program to year-round industries, as well as report language in the USDA bill on the creation of an H-2A application portal.

In addition, as we reported in the last update, there are efforts to freeze wage rates in the H-2A program by keeping the Adverse Effect Wage Rate (AEWR) at the 2018 levels instead of allowing the expected 2019 rates to go into effect.  These efforts are aimed at Congress and the appropriations process as well as the Administration. The 2019 hourly wages are expected to increase approximately 6% nationwide, with higher increases for some states. Failing to implement the AEWR – which would effectively lower H-2A wage rates in most areas around the country in 2019 – would adversely affect the wages and working conditions of U.S. workers.  Farmworkers’ wages are among the lowest in the nation. Farmworker Justice opposes these efforts to freeze the AEWRs in the H-2A program.

Support This Publication and the Work of Farmworker Justice

The policy monitoring, analysis and advocacy of Farmworker Justice serves the farmworker community. Farmworker-serving organizations throughout the nation count on Farmworker Justice.  And Farmworker Justice counts on you for your support to make our work possible. Please make a charitable contribution to Farmworker Justice, in any amount. You may donate with a credit card online or mail your donation to Farmworker Justice, 1126 16th St., NW, Suite LL-101, Washington, D.C. 20036.  Thank you!

Update on Farmworker Health and Safety

FJ Issue Brief on Specialty Care for Farmworkers

Farmworker Justice recently published a new issue brief for health centers and clinicians that outlines the continuing challenges in providing specialty care to agricultural workers and their families. The brief discusses lessons learned from FJ’s “Unidos” project - a collaborative effort between FJ and two community partners: Campesinos Sin Fronteras and Vista Community Clinic - to deliver dermatological care to agricultural workers in Somerton, Arizona and Vista, California. The brief also explores opportunities for telehealth, based on a related effort with Harvard’s Center for Health Law and Policy Innovation (CHLPI) that involved workers directly in discussions about telehealth interventions. Based on lessons learned, the brief highlights recommendations for health centers to promote access to specialty care among agricultural workers and their families.  

GAO Report Finds Agriculture Has Highest Rate of Child Work-Related Deaths  

A recently published study by the Government Accountability Office (GAO) found that agriculture accounts for more than half of child worker deaths, with 237 fatalities between 2003 and 2016. The study was requested by Reps. Rosa DeLauro (CT) and Lucille Roybal-Allard (CA) as an update to GAO’s 2002 child labor report. In a statement on the report’s release, the Representatives noted: “This report confirms that child labor is contributing to a devastating amount of fatalities in the United States – disproportionately so in the agricultural sector. In that industry, kids are often exposed to dangerous pesticides, heavy machinery, and extreme heat, and they are being killed as a result. That is unacceptable.  Our government must take these findings as a call to action […].” The federal Fair Labor Standards Act (FLSA), which regulates child labor, allows children to be employed in agricultural jobs, including in hazardous tasks, at younger ages than in other occupations. Rep. Roybal-Allard has been a leader in efforts to end the discrimination in the law regarding child labor on industrialized farms. You can find the full GAO report, entitled “Working Children: Federal Injury Data and Compliance Strategies Could Be Strengthened,” here.

Congress Passes Farm Bill, No PRIA Language Included

Last week, both chambers of Congress passed the Farm Bill, which is expected to be signed into law by the President later this week. Originally, the House and Senate versions of the bill were very different, particularly with regard to provisions on nutrition and environmental protection programs. The final bill did not include controversial cuts to the Supplemental Nutrition Assistance Program (SNAP) that were in the original House bill and preserved many important environmental protection programs.

The final Farm Bill did not include language regarding the Pesticide Registration Improvement Act (PRIA). Earlier this year, the Senate passed a standalone version of PRIA conserving key provisions of two rules protecting farmworkers from pesticide exposure - the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rule. FJ, along with other farmworker and environmental advocates, is calling on the House to pass this version of PRIA before the end of the legislative term.

Judge Issues Ruling against ACA in Texas v. United States

On December 14, a federal judge in Texas ruled the Affordable Care Act (ACA) unconstitutional after the elimination of the tax penalty in the 2017 tax bill. In his ruling, Judge Reed O'Connor wrote that the individual mandate could not be severed from the rest of the ACA, rendering the law unconstitutional. The lawsuit was led by Texas and 19 other states. California, along with 16 other states and Washington, DC, intervened to defend the ACA in court after the Trump Administration declined to defend key provisions of the law. Attorney General Xavier Becerra of California said that they will challenge the ruling. If the Judge's decision stands, an estimated 17 million Americans could lose their health insurance, including those who gained coverage under Medicaid expansion. The ACA’s pre-existing conditions protections, along with other consumer protections in the law, would also no longer exist.

The ACA remains in effect as the appeals process moves forward. While open enrollment for insurance plans on healthcare.gov ended on December 15, enrollment in some states, including California and New York, continues. A Kaiser Family Foundation health poll conducted in November found that 61% of surveyed consumers did not know the deadline for enrollment. While final enrollment numbers are not yet available, so far, enrollment has declined compared to last year.

New Guidance for Section 1332 Waivers

The Trump Administration released new guidance for Section 1332 waivers that will provide states with flexibility that could ultimately weaken certain ACA provisions. Section 1332 innovation waivers, issued by the Centers for Medicare & Medicaid Services (CMS), allow states to experiment with strategies to provide residents with health coverage. Guidance released in 2015 provided a strict interpretation of statutory guardrails that will affect consumers. The new guidance, published in October 2018, establishes less restrictive standards such as expanded definitions of coverage to include short-term plans and encouraging states to use private exchanges to offer subsidies for non-ACA-compliant plans. More information about this guidance can be found on the Kaiser Family Foundation website. The new guidance is currently open for public comment until December 24. If you are interested in learning more, you can read this analysis by Families USA.

Over 200,000 Comments Submitted on Public Charge Proposal

Thank you to everyone who shared and submitted comments opposing the Administration's proposed changes to public charge. According to regulations.gov, over 216,000 comments were submitted and we expect that number to grow. FJ will continue to provide any relevant information on public charge and farmworkers. Visit the Protecting Immigrant Families website to learn more about the campaign, led by NILC and CLASP, and future advocacy efforts.

Best Wishes for a Healthy and Happy New Year!
 

Farmworker Justice Update: 11/09/18

Rulemakings Related to the H-2A Program

Today, the Department of Labor’s Employment and Training Administration (DOL ETA) issued notices of proposed rulemaking regarding the recruitment requirements for the H-2 visa programs, both H-2A and H-2B. Farmworker Justice plans to draft comments on this proposal to ensure that recruitment protections for U.S. workers are not weakened. Comments are due December 10.

Last month, DOL ETA announced a proposed revision of the forms used for employer certification under the H-2A temporary agricultural worker visa program. The two forms being revised are Form ETA-9142A, which is the form employers use to apply for H-2A workers, and Form 790, which is the agricultural clearance order that contains job terms and instructions for job applicants. FJ will also draft comments for this rulemaking (the deadline for these comments is December 24).
Additionally, FJ is anticipating that, as announced in DOL’s fall regulatory agenda, there will be a broader set of proposed changes related to the H-2A program published in the coming months. FJ is deeply concerned that the anticipated changes could reduce critically important farmworker protections in the H-2A program. FJ will continue to monitor any administrative attempts to undo the current protections in the H-2A program.

USDA Proposed Changes to Farm Labor Survey Used in H-2A Program

Farmworker Justice submitted comments on November 8 to the US Department of Agriculture (USDA) regarding its proposal to make changes in its Agricultural Labor Survey (ALS), formerly known as the Farm Labor Survey.  The ALS includes data from farm operators regarding the wages paid to farmworkers. Although there are shortcomings in the survey that limit is value, it provides helpful information. For many years the Department of Labor has set the H-2A program “adverse effect wage rates” for each state based on the ALS findings for average hourly earnings of the combined category of field and livestock workers. The proposed change in the survey regarding wage reporting contained vague and troubling language that could lead to understating farmworkers’ wage rates and artificially lowering the minimum wage rates required under the H-2A program.  FJ therefore opposed some of the proposed revisions to the survey’s questions.

Washington Ag Employer Fined for Discrimination, Sexual Harassment and Retaliation  

Last month, the Washington State Attorney General announced a consent decree ordering Horning Brothers, LLC, an agricultural employer, to pay $525,000 for claims of sexual harassment, sex discrimination and retaliation. The company must also adopt non-discrimination and anti-retaliation policies. The Northwest Justice Project worked on the case alongside the WA Attorney General, and represented five of the affected workers. In a lawsuit filed last year, the plaintiffs alleged that the company, which owns an onion packing shed, only hired women to sort onions on the packing line, and limited the hiring of women for other positions. Furthermore, the company ignored female employees’ complaints about sexual harassment by one of its foremen, and retaliated against those who complained. This case highlights that discrimination and harassment are unfortunately still very prevalent for women in the agricultural industry.

Massachusetts Overtime Pay Case for Agricultural Workers

On November 5, the Massachusetts Supreme Judicial Court heard oral arguments in a case which has the potential to award overtime pay for workers who clean, pack and sort bean sprouts at an indoor growing and packing facility. The case presents an issue of first impression under Massachusetts law, which, like federal law, excludes farmworkers from the right to overtime pay. Generally, workers in a processing plant are not considered agricultural workers for purposes of the overtime exemption. Farmworker Justice has supported efforts to amend federal and state employment laws to end the discriminatory exemption of agricultural employers from paying agricultural workers overtime.  

Ballot Measures Increasing Minimum Wage Succeed in Arkansas and Missouri

Two ballot measures increasing state minimum wages succeeded in the November 6 midterm election. The state of Arkansas voted to gradually increase its minimum wage from $8.50 an hour to $11 an hour within the next three years, while Missouri voters approved a gradual increase from $7.85 an hour to $12 an hour within the next five years, with further adjustments based on the consumer price index. However, some exemptions for particular agricultural businesses and farmworkers from the minimum laws in these states mean that some farmworkers will not benefit from these changes. There are exceptions in the state laws applicable specifically to agriculture that are similar to those in the federal Fair Labor Standards Act (FLSA), including for small agricultural employers; livestock workers on the open range; family members of the farm operator; children under age 16 employed on piece rate; and for those farmworkers who are hired on piece-rates to do harvesting and worked in agriculture less than 13 weeks in a prior year.  

Mixed Midterm Election Results

The November 6 midterm elections led to mixed results for Congress: Democrats were able to take control of the House, while Republicans deepened their control of the Senate. The prospects for progress on legislation that would benefit farmworkers remain very limited, but several proposals in the last Congress that threatened farmworkers’ employment rights and immigration status are not likely to proceed in this Congress. With Democrats assuming leadership roles in key House committees in January, they will be poised to conduct oversight over the President’s actions, as well as the policies of government agencies such as the Department of Homeland Security (DHS), the Department of Labor (DOL), the Environmental Protection Agency (EPA) and the Department of Agriculture (USDA). Each party will also soon be selecting its internal party leadership. House GOP leadership elections are scheduled for November 14, with Jim Jordan (R-OH) and Kevin McCarthy (R-CA) competing for the role of minority leader.  Rep. Nancy Pelosi (D-CA) has announced her campaign for Speaker of the House, the position she held when Democrats previously held the majority of House seats.

Government Asks Supreme Court to Intervene in DACA Cases As Program Continues

Yesterday, a federal court in California continued the injunction against the Trump Administration that prevents it from terminating the Deferred Action for Childhood Arrivals (DACA) program. The 9th Circuit Court of Appeals ruled unanimously in favor of the preliminary injunction issued earlier this year by U.S. District Judge William Alsup, which kept DACA operational while its future continues to be litigated. Two other decisions by federal judges earlier this year, in New York and Washington, D.C., also led to injunctions against the Administration’s decision to end the DACA program, thus allowing DACA recipients to renew their applications. Since January 2018, approximately 180,000 DACA recipients have renewed their applications.

Earlier this week, the Department of Justice (DOJ) petitioned the Supreme Court to fast track these DACA cases. If the Supreme Court grants certiorari and decides to take the cases, the earliest a ruling could be expected is June 2019.  If you or someone you know has DACA status which expires within the next 6 months, experts recommend that you consult with an immigration attorney and submit your renewal application. Unfortunately, at this time, no first-time DACA applications are being accepted. You can learn more about the status of current DACA cases, as well as steps to take to renew your DACA status here.    

 Jeff Sessions No Longer Attorney General

On November 7, President Trump announced via Twitter that Jeff Sessions will no longer be serving as Attorney General, the highest post in the Department of Justice (DOJ), having been forced to resign immediately after the election. Matthew G. Whitaker, who was the Justice Department Chief of Staff, was appointed Acting Attorney General until a permanent replacement is confirmed. During his tenure as Attorney General, Sessions, a former Senator from Alabama, pursued a strenuous agenda antagonistic to immigrants, civil rights and liberties, and criminal justice reform.  

Update on Farmworker Health and Safety

Scientific Paper on Pesticide Exposure and Children’s Neurodevelopment

A new scientific paper details the dangers that organophosphates, which are widely used agricultural pesticides, pose to children’s health and development. The researchers found that even low levels of exposure can lead to cognitive problems in children. One of these pesticides, chlorpyrifos, was on track to be banned by the Environmental Protection Agency (EPA), but the current Administration ignored the findings of its own scientists and has allowed continued use of the neurotoxin. Worker and health advocates challenged the Administration’s reversal, and that litigation is currently ongoing (as detailed in previous FJ updates.) The paper also sets out some recommendations that could result in substantial reductions in pesticide exposure. You can read the full paper here.

Report on Impact of Heat Stress on Florida Workers

A recently released report by Public Citizen and the Farmworker Association of Florida details the impact of heat stress on Florida workers. According to the report, farmworkers and construction workers are the highest risk populations, not just because of their exposure to heat, but also because of other factors, such as fear of immigration enforcement, which might make them less likely to voice health or safety concerns. The threat of heat illness is growing due to rising global temperatures. As mentioned in previous updates, FJ, along with Public Citizen and many others, is involved in a national campaign for a federal heat stress standard. If you are interested in supporting this campaign, please contact FJ’s Director of Occupational & Environmental Health, Virginia Ruiz, at [email protected].

Farmwork Among Fifteen Most Dangerous Jobs Based on Fatality and Injury Rates

 A recent article ranks jobs based on occupational fatality and injury rates of the Bureau of Labor Statistics (BLS) data. It states that agricultural workers (separate from farmers) have the 11th most dangerous job while also having the lowest wages on the list of 15 most dangerous jobs. The article calculated that farmworkers are five times more likely to have a fatal injury than the average worker. The most common cause of fatal injury for most of the occupations, including farmworkers, was transportation accidents. The article may understate the dangers of agricultural work. The BLS data for 2016 by industry shows that the farming, fishing and forestry category had the highest rate of fatalities per 100,000 workers, at 23.2, over 6 times the 3.6 overall average rate. At a more detailed level, in crop production, the rate of fatalities per 100,000 workers was 20.9, higher than mining and construction and only slightly lower than transportation. The rate for animal production and aquaculture was 20.9.  
 

Farmworker Justice Update - 09/07/18

Farmworker Justice Update: 09/07/18

Congressional Action Post-Recess

Congress returned from August recess this week and has a limited number of legislative days left before the mid-term elections. Below are some of the key issues currently being considered:

Appropriations: Potential Impacts on H-2A Program

Congress is facing a September 30 deadline for passing FY 2019 appropriations bills; otherwise they risk a government shutdown. Given recent remarks by President Trump regarding a potential shutdown over border wall funding, it is very likely that there will be a continuing resolution (CR) for the Department of Homeland Security (DHS) appropriations bill, which covers funding for immigration enforcement. A CR is essentially an extension of current appropriations levels. Congress is also currently working on a serious of “minibuses” (packages consolidating various appropriations bills), which include labor, health, education, agriculture, defense spending and various other issues. There may ultimately be CRs on these remaining bills as well if no agreement is reached by September 30.

As a reminder, there are troubling riders related to the H-2A program in the House appropriations bills.  The House agricultural appropriations bill includes an H-2A rider that gives the USDA, rather than DOL, authority to establish and oversee a new online interagency platform for employers’ H-2A applications. This rider raises serious concerns about efforts to undermine DOL’s primary responsibility for ensuring worker protections are met and otherwise limit government oversight of the application process.  In addition, a rider was added to the House DHS appropriations bill that would expand the H-2A program to include year-round employment in agriculture. This change would not only undermine the intent of the H-2A program to address more difficult to fill temporary and seasonal jobs, but would also supplant many of the existing farmworkers who depend on these jobs for their livelihood and who are integral members of their communities.

Farm Bill

Another looming September 30 deadline for Congress is the expiration of the current Farm Bill. Senators and Representatives from both parties are working to reach a compromise as soon as possible, but various significant disagreements remain on issues including nutrition programs. One development that is particularly concerning for farmworkers is the potential inclusion of the “Pesticide Registration Improvement Extension Act of 2017,” PRIA 4, in the Farm Bill. As we have noted in previous updates, the Senate passed a standalone version of PRIA 4 which includes language guarding against rollbacks to pesticide protections for farmworkers. The Farm Bill PRIA language does not have these protections. As stated by Rep. Grijalva (TX) during a Farm Bill conference meeting, the House should instead pass the Senate version of PRIA in order to ensure farmworkers and their children are healthy and safe from pesticide exposure. Please click here to view a letter from over 100 children’s, agricultural, faith, health, industry, farmworker, and environmental organizations urging that PRIA be stripped from the Farm Bill.

Goodlatte Agricultural Guestworker Bill   

Despite the crowded Congressional calendar, the American Farm Bureau Federation is still attempting to garner support for a vote on Rep. Goodlatte’s “Ag and Legal Workforce Act,” H.R. 6417. Farmworker Justice strongly opposes Rep. Goodlatte’s bill and continues to educate members of Congress on the bill’s many anti-immigrant, anti-family and anti-worker provisions.

Kavanaugh Confirmation Hearing

September 4 marked the first day of confirmation hearings for Supreme Court nominee Brett Kavanaugh in the Senate, which continued during the week. The hearings covered a wide range of issues, and were marked by protests as well as controversy regarding the release of documents. A vote on Kavanaugh’s nomination may occur as early as next week. Senate Republicans are hoping to confirm Kavanaugh before the Supreme Court reconvenes in October. Farmworker Justice joined a broad coalition letter stating many reasons to oppose Kavanaugh’s confirmation that was organized by the Leadership Conference on Civil and Human Rights.

U.S. and Mexico Reach NAFTA Deal, Canada Now in Negotiations

The U.S. and Mexico recently announced that they have reached a deal on the modernization of the North American Free Trade Agreement (NAFTA). According to the Office of the U.S. Trade Representative, the new deal will have a labor chapter that will include an Annex on collective bargaining in Mexico and new provisions regarding goods produced by forced labor and protection for migrant workers. Farmworker Justice has found the current NAFTA’s labor side agreement protections for U.S. and Mexican farmworkers to be weak. It remains to be seen if or when Canada, the remaining party to NAFTA, will agree to the terms proposed by the U.S. and Mexico. President Trump has threatened to leave Canada out of the revised deal entirely. One of the disputes concerns trade of milk and other dairy products. The White House gave Congress the required 90-day notification for the signing of NAFTA on August 31. Mexico’s current government leaves office December 1, so this timing would allow Mexico to sign the new deal before the country’s change in leadership.

DOL Debars North Carolina H-2A Contractor

On August 28, the Department of Labor’s Wage and Hour Division (DOL WHD) announced the debarment of an H-2A farm labor contractor. Ruben V. Serna, owner of Serna Harvesting, owed $194,109 in back wages to 181 employees working at 15 different North Carolina farms. Serna charged the workers for housing and transportation, and failed to properly record hours in payroll records. FJ remains concerned that the increasing use of farm labor contractors by farm owners to hire H-2A workers leads to abuses that are not prevented if the owners are not held jointly responsible and liable for violations of workers’ rights.

Workplace Immigration Raid in Texas

A workplace raid near Paris, Texas last month led to the arrest of 160 workers. The raid resulted from a criminal investigation into the Load Trail company, which makes vehicle trailers. Many of the detained workers are Mexican nationals. This latest raid is the most recent example of workers facing family separation and possible deportation because of investigations regarding their employers.

One Year After Trump’s Rescission, DACA Remains, For Now

September 5 marked the one-year anniversary of the Trump Administration’s decision to rescind the DACA program. A series of lawsuits have been filed since then, most of which sought to preserve DACA. Injunctions from these lawsuits have resulted in the ability for current DACA holders to maintain and renew their status. On August 31, Judge Andrew Hanen ruled on a lawsuit led by the state of Texas seeking to end DACA. Judge Hanen did not order a halt to the DACA program, noting that to do so in the current context would cause more harm than the states claimed the program itself caused, while at the same time questioning the legality of the program. (Judge Hanen is the same judge who previously ruled against the Deferred Action for Parents of Americans (DAPA) program.) There is likely to be an appeal of Judge Hanen’s decision, but in the meantime USCIS is still accepting and processing DACA renewal applications. Please see NILC’s FAQs on DACA renewals for more information.

CAP Report on Immigrants in Rural America

A recent report by the Center for American Progress (CAP) analyzes the impact of immigration on rural areas. The report found that in many rural areas immigration helped to fuel population growth or at least slow population decline. The report also states that immigrants have been an indispensable part of the agricultural sector, which provides employment for 1 out of 10 rural workers. It mentions crop production and dairy as two specific sectors that are highly dependent on immigrant labor.

Civil Eats Article on Yuma Lettuce Pickers

A recent Civil Eats article describes daily life for the farmworkers who pick lettuce in and around Yuma, Arizona. The Yuma Valley grows approximately 90% of all of the U.S.’ leafy greens during the winter. The article highlights the great work done by Campesinos sin Fronteras in providing needed basic services to farmworkers. (FJ has a long history of collaborating with CSF.) As noted throughout the article, for all the technological advancements in agriculture, the working conditions and pay for those still doing the bulk of this work have not significantly improved.

Update on Farmworker Health and Safety

Oral Arguments Held on ACA Case Texas v. United States

On September 5, oral arguments were heard in Texas v. United States (formerly Texas v. Azar). The lawsuit, brought by 18 state Attorneys General, argues that the ACA should be invalidated due to Congress’ elimination of the tax penalty under the ACA’s individual mandate. The lawsuit argues that the elimination of the penalty renders others parts of the ACA, including the guaranteed coverage of pre-existing conditions, unconstitutional. The Administration did not defend the key provisions of the ACA in court. Attorneys General from 16 other states and the District of Columbia, led by California, intervened to defend the ACA and its provisions in court. In anticipation of this case, Sen. Tillis (NC) introduced the “Ensuring Coverage for Patients with Pre-Existing Conditions Act” (S. 3388) on August 23. This bill proposes to amend the Health Insurance Portability and Accountability Act (HIPAA) to prevent insurers from denying coverage due to pre-existing conditions. However, the proposed bill does not prevent insurers from charging individuals based on age and gender or for specific services to treat those pre-existing conditions. The bill has been referred to the Health, Education, Labor, and Pensions (HELP) committee.

California Proposes to Ban Short-term Health Plans

In response to the recent federal rules authorizing expanded use of short-term health plans, the California Legislature passed a bill that would prohibit the sale of short-term health plans in California. Short-term health insurance plans are not subject to ACA standards such as essential health benefits coverage. SB 910 (sponsored by State Sen. Ed Hernandez) would prohibit the sale of health insurance plans that are less than 12 months. This bill is among a handful of bills passed by the legislature in direct response to recent Administration rules. These other bills include SB 1108, which would ban the state from implementing a work requirement for Medi-Cal, and SB 1375, which would prohibit the formation of Association Health Plans. Governor Brown has until September 30 to sign the bills into law.

Heat Stress Increasing Threat to Farmworkers

A recent Mother Jones article highlights the threat to farmworkers’ lives posed by extreme heat, which will only increase with the effects of climate change. The article mentions the campaign led by Public Citizen, the United Farm Workers Foundation and Farmworker Justice to petition the Occupational Safety and Health Administration (OSHA) for a national standard to prevent heat stress and the need to address this problem before it gets even worse.

Farmworker Justice Update - 08/15/18

Farmworker Justice Update: 08/15/18

H-2A Data Published for Third Quarter of FY 2018

The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently released H-2A program data for the third quarter of FY 2018.  The data shows that there have been 193,603 positions certified so far this fiscal year. A total of 200,049 H-2A positions were certified in all of FY 2017. Thus, it is likely that the total number of positions certified in FY 2018 will be significantly higher than those certified in FY 2017, in line with the broader trend of continued growth of the H-2A program. The states of Georgia, Florida, Washington, North Carolina and California had the highest number of H-2A positions certified during the first three quarters of FY 2018, accounting for more than half of all positions certified.

Recent Cases Demonstrate Abuses in H-2A Program and Vulnerability of Workers

On August 6, the Department of Labor’s Wage and Hour Division (DOL WHD) announced a temporary restraining order and preliminary injunction against Marin J. Corp, an H-2A employer in Missouri. WHD investigators found that the employer provided unsanitary and unsafe housing and also failed to pay workers required wages. Marin J. Corp employed more than 100 H-2A workers and housed some of the workers in a former jail. Several of the workers also reported fainting from heat stroke and the fields where they were working lacked adequate access to water and restroom facilities.

Also last week, farmworkers in New York filed a lawsuit against their employer for failure to pay legally required wages and for providing unsafe and overcrowded housing.  The workers are represented by the Worker Justice Center of New York. They are seeking unpaid wages and overtime pay from 2012 through the present, plus monetary damages for the substandard housing. The employer involved participates in the H-2A program, but allegedly paid the plaintiffs, who are domestic workers, lower wages than those required under the program.

In Washington, there is ongoing activism and challenges following the death of an H-2A worker last year. Fellow workers were fired when they went on strike to demand better working conditions and their employer, Sarbanand Farms, was fined earlier this year by the DOL for not providing required breaks and meal periods. The case is detailed in a recent article in The American Prospect by David Bacon entitled “What Was the Life of this Guest Worker Worth?” The article quotes FJ President Bruce Goldstein on a variety of H-2A issues. It also mentions WAFLA’s (formerly the Washington Farm Labor Association) manipulation of wage surveys in order to drive down wages. FJ is working with Washington state advocates to protect farmworker wages.

ICE Raids Agricultural Facilities in Nebraska and Minnesota

On August 8, ICE raided various facilities in Nebraska and Minnesota, including a tomato greenhouse, a cattle feedlot and a potato processing facility. ICE agents arrested 133 workers.  Seventeen employers were also arrested based on allegations including wire fraud and money laundering. The arrests resulted from an investigation centered on a recruiter who hired workers for the various businesses involved. The recruiter allegedly forced employees to cash their paychecks at his grocery store, charging them a fee. He also allegedly withheld a portion of each paycheck, claiming he was withholding taxes but instead pocketing the money.

A particularly disturbing aspect of these recent raids is that the employees who were allegedly cheated by these abusive employers are being detained themselves. This will likely have a chilling effect on other employees who might be willing to denounce employer abuses in the future, because they will fear immigration reprisals for themselves or their colleagues. The local communities in the areas where the raids occurred have of course been severely impacted. A public school opened its doors to offer counseling for individuals affected by the raids, including many children whose family members, including parents, were detained.  A protest and vigil were held shortly after the raids. Some neighbors also voiced concerns about the economic impact that the raids will have on these small rural communities.

Legal Battle over the Status of DACA Continues Amidst Legislative Inaction

On August 3, a federal judge in D.C. vacated the government’s rescission of the DACA program. This means that the government may soon have to start accepting new DACA applications, in addition to processing renewals, which is currently required pursuant to previous orders by judges in California and New York. The D.C. judge’s order will go into effect on August 23 unless the U.S. government obtains a stay of the order by that date. In the meantime, a case challenging DACA is currently being litigated in Texas and could result in a judge ruling that DACA must be terminated and that the government must stop receiving applications. If that happens, there could be contradictory orders regarding DACA from different courts in the country. Any conflicting court decisions would need to be appealed and may ultimately end up before the Supreme Court, though the timeline for a potential Supreme Court decision still remains unclear.  This uncertainty is weighing heavily on Dreamers as they continue to plan their futures. For a full summary of ongoing litigation related to DACA, please see this chart prepared by the National Immigration Law Center (NILC).

Update on Farmworker Health and Safety

Court Orders EPA To Ban Pesticide Chlorpyrifos Within 60 Days

In a significant victory for farmworkers, public health and the environment, on August 9 the 9th Circuit Court of Appeals ordered the EPA to ban the highly toxic pesticide chlorpyrifos within 60 days. The ruling was the result of a lawsuit brought by Earthjustice and various other advocacy groups. Farmworker Justice was a plaintiff in the lawsuit.  As has been noted in previous FJ updates, the EPA had been set to ban chlorpyrifos, which has been linked to neurodevelopmental damage in children, but former EPA Administrator Scott Pruitt decided not to ban the pesticide after meeting with agrochemical industry representatives.

As stated by Virginia Ruiz, FJ’s Director of Occupational and Environmental Health, farmworkers and their families have needlessly suffered from exposure to chlorpyrifos for far too long. Chlorpyrifos is currently used in over 50 different crops, including corn, soybeans, fruit and nut trees, and broccoli. Corteva, the agricultural division of DowDuPont, issued a statement soon after the ruling calling for an appeal to the decision. Crop Life America, another major manufacturer of the pesticide, has also called for an appeal of the ruling. The EPA has stated that it is reviewing the decision and has not yet decided whether it will appeal the ban.

NPR Highlights Rural Housing Crisis

A recent NPR report highlights the lack of adequate, affordable housing in rural areas of the U.S. The article focuses on a small Nebraska town and the lack of adequate housing for workers in a variety of industries, but does not mention farmworkers. However, the general scarcity of housing in rural areas often makes it even harder for farmworkers to find safe and affordable places to live. This reality is part of the reason why it is so important to maintain crucial protections in the H-2A program that require employers to provide housing for workers.

Farmworker Justice Update - 07/06/18

Farmworker Justice Update: 07/06/18

Sen. Harris and Rep. Grijalva Introduce Overtime Bill for Farmworkers

On June 25, the 80th anniversary of the Fair Labor Standards Act (FLSA), Sen. Harris (CA) and Rep. Grijalva (AZ) introduced the “Fairness for Farm Workers Act” (S 3131/HR 6230), which would amend the FLSA to include agricultural workers in its overtime provisions.  It would also remove most of the remaining exclusions of farmworkers from the minimum wage. As stated by Sen. Harris, the bill “is a matter of basic fairness and justice.” The bill has 9 original co-sponsors in the Senate and 51 original co-sponsors in the House. Farmworker Justice strongly supports the Fairness for Farm Workers Act, as do over 100 labor and civil rights organizations. More information about the legislation, including a summary and a factsheet, are available on our website.

On June 21, Members of the House sponsored a briefing on FLSA’s 80-year history. Speakers included FJ’s Bruce Goldstein as well as members of Congress and representatives from the Center for American Progress, the National Employment Law Project, the Restaurant Opportunities Center, the National Child Labor Coalition and labor unions.  In addition to FLSA’s exclusions of farmworkers from overtime and other protections, Bruce discussed the challenges posed to enforcement of the minimum wage due to farm labor contracting, mandatory individual arbitration and workers’ fear of retaliation.

Second House Vote on Immigration Fails, Future Action on Immigration Uncertain  

On June 27, the House of Representatives voted on the “Border Security and Immigration Reform Act of 2018,” HR 6136, known colloquially as the Ryan “compromise” immigration bill. The bill failed by a vote of 121-301. Although Rep. Goodlatte submitted a proposed amendment to the Ryan bill containing his “Agricultural Guestworker Act” (AGA), the amendment was ultimately not included in the bill. However, House Republican leadership has reportedly promised to bring a  bill related to agricultural workers to a vote before the August recess. That bill’s terms are likely to be based on the Goodlatte AGA. The issue of family separation, discussed in more detail below, is another topic that may be the focus of Congressional action on immigration in the weeks to come.

California Judge Issues Family Separation Injunction

On June 26, a federal judge in California issued an injunction ordering the Trump administration to stop separating families at the border. The injunction also mandates that separated children under five (5) must be reunited with their parents within 14 days (by July 10), and all other children must be reunited with their parents within 30 days (by July 26).  The judge’s order also states that adults may not be deported from the U.S. without their children unless they “affirmatively, knowingly, and voluntarily decline to be reunited.” In spite of the order, there are recent concerning reports that immigration agents are forcing parents to choose between leaving the country with or without their children in an attempt to coerce parents to drop their asylum claims.

ICE Raids May Further Silence Undocumented Workers

A recent immigration raid in Ohio has renewed concerns that immigration enforcement may make it more difficult for workers to denounce unsafe workplace conditions. Last month’s raid in an Ohio meat processing plant occurred just a few weeks after the company was fined for failing to provide proper guards for one of its machines, which resulted in the death of a worker in December. As stated by FJ President Bruce Goldstein, many workers are too afraid of retaliation to challenge unfair or illegal conduct, especially in light of the increase in immigration enforcement.

USDA’s Legacy of Discrimination against Black Farmers

A recent article explores the history of discrimination against black farmers by the U.S. government, particularly the U.S. Department of Agriculture (USDA). There are approximately 44,000 black farmers in the U.S. today, making up less than 2% of the farmer population. By contrast, in 1920, black farmers made up approximately 14% of all farmers in the U.S. Advocates say this decrease is the result of active discrimination. For example, farmer Michael Stovall was repeatedly denied a USDA loan for lack of experience, despite the fact that his family had owned their farm for four generations. After more than a decade of litigation, Stovall was eventually awarded a settlement of $250,000. Stovall’s story is not unique. A class action brought against the USDA in 1999, Pigford v. Glickman, alleged racial discrimination and eventually resulted in payouts to over 80,000 individuals totaling more than a billion dollars. Currently, two of the biggest threats to black farm ownership include pressure from corporate farms to buy land for soybean and corn production and the ageing of black farmers without adequate estate planning to ensure the property stays in the family. More recently, Latino, Native American and women farmers sued the USDA for discrimination. Former USDA Secretary Vilsack established claims procedures and funds were set aside to pay successful claims.

Update on Farmworker Health and Safety

Farmworker Death from Heat Stress

Farmworker Justice expresses its condolences to the family of Miguel Angel Guzman Chavez, who died on June 21 from apparent heat stroke. Guzman Chavez, aged 24, had arrived in Georgia from Mexico on an H-2A temporary work visa just a few days earlier. He fell ill and collapsed while picking tomatoes. The temperature at the time was 95 degrees, with a heat index of up to 104 degrees. Several organizations are offering assistance to the family.

Need for Government Action to Prevent Heat Stress Deaths

Unfortunately, injuries and deaths from heat stress are not uncommon among farmworkers and yet they are almost always preventable. Farmworker Justice has sought federal safety standards to protect agricultural workers and is renewing our effort. In fact, Public Citizen, the United Farm Workers, and Farmworker Justice will soon petition the Occupational Safety and Health Administration (OSHA) to shield some of the most vulnerable U.S. populations, including farmworkers, by adopting heat stress protections. The petition will initiate the launch of a campaign to win a federal heat stress rule and encourage actions by state governments, as well as educate the public on the dangers of heat stress and the need to mitigate climate change. If your organization would like to sign on to the petition, please click here (the deadline for sign-on is July 10). For more information on this initiative, please contact FJ’s Director of Occupational & Environmental Health, Virginia Ruiz, at [email protected].  

Child Labor in Tobacco Fields

Recent articles in both The Guardian and The Atlantic detail the prevalence of child labor in the tobacco industry. Workers in tobacco fields are vulnerable to nicotine poisoning, known as green tobacco sickness, in addition to general health risks faced by farmworkers including heat stress, injuries and pesticide exposure. The lack of adequate child labor protections in agriculture, coupled with the broader exclusions of farmworkers from key labor protections, create a situation that is ripe for child labor. The widespread use of labor contractors in agriculture also exacerbates this issue, as farm operators claim ignorance regarding the presence of children in their fields or supply chains.   

Oral Arguments in Chlorpyrifos Case Set for July 9

On July 9, the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in a lawsuit against the Environmental Protection Agency (EPA) regarding the agency’s decision to reverse a planned ban of the pesticide chlorpyrifos. Farmworker Justice is a plaintiff in the case. Chlorpyrifos was banned for household use two decades ago, and the EPA was set to ban the chemical for agricultural use as well, based on the agency’s own science. However, EPA Administrator Scott Pruitt reversed course after pressure from Dow Chemical – the nation’s largest manufacturer of chlorpyrifos. The agency’s next safety review of chlorpyrifos is currently set for 2022.

EPA Administrator Scott Pruitt Resigns

On July 5, EPA Administrator Scott Pruitt tendered his resignation. Pruitt was facing a series of ethics scandals and federal investigations related to his use of taxpayer funds for first class travel, security and other expenses, as well as use of his position to try to secure a job for his wife, among various other controversies. Deputy Administrator Andrew Wheeler, a former coal industry lobbyist, will now be the acting EPA Administrator

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