Pesticides

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.

Farmworker Justice Update - 05/17/19

Farmworker Justice Update: 05/17/19

DOL Releases H-2A Second Quarter Data Showing Continued Growth

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently published data on the H-2A temporary agricultural worker visa program for the second quarter of FY 2019. The data shows that approximately 123,000 H-2A positions have been certified so far this fiscal year, a 14% increase over the same period in FY 2018.  In FY 2018, DOL approved a total of approximately 242,000 H-2A jobs.

NCAE Continues Attempts to Decrease Farmworker Wages

On April 30, the National Council of Agricultural Employers (NCAE) sent a letter petitioning the Department of Labor (DOL) to change its methodology for calculating the Adverse Effect Wage Rate (AEWR) for the H-2A program. As noted in previous updates, the NCAE filed a lawsuit earlier this year seeking to reverse the DOL’s implementation of the 2019 AEWRs. The lawsuit, Peri & Sons Farms, Inc. v. Acosta, was dismissed by a U.S. District Court judge in March based on the statute of limitations. On April 18, two weeks before sending the letter to the DOL, the NCAE filed an appeal in the Peri & Sons case. The appellant’s briefs are due next week. FJ is co-counsel for the United Farm Workers (UFW), which intervened in the case.

House Committee Hearings on the Agricultural Economy

The House Committee on Agriculture recently held two hearings on the state of the agricultural economy. One was focused generally on the farm economy, while the other focused specifically on the dairy industry. The hearing witnesses discussed a variety of factors including trade uncertainty and product pricing. Another factor that was highlighted in both hearings was the importance of immigrant labor to the agricultural economy. A few of the representatives present stressed the need to provide an immigration solution for the many undocumented workers who are currently doing agricultural work, such as in the Agricultural Worker Program Act of 2019, which FJ supports. However, some of the witnesses and representatives instead took the opportunity to call for weakening the existing protections in the H-2A temporary agricultural worker visa program, including an expansion to year-round industries such as dairy. As detailed in our fact sheet on the most recent H-2A year-round proposal, FJ opposes expanding the H-2A program to year-round jobs and supports opportunities for immigration status for any farmworkers needed in the future. 

Recent DOL Enforcement Actions against H-2A Employers

The Department of Labor (DOL) recently issued a decision against James Brady Sr. of Lebanon, Kentucky for violations of the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the H-2A visa program.  Brady, a tobacco farmer, paid his U.S. employees less than H-2A workers doing the same work. Among other violations, Brady also failed to provide the H-2A workers with free housing, transportation reimbursement, and three-quarters of the hours guaranteed in their work contracts. Brady was ordered to pay almost $92,000 in back wages as well as a civil money penalty of $115,000.

DOL also recently announced consent findings in a case against Earl Roy Farm of Louisiana LLC, a sweet potato farm based in Hessmer, Lousiana, for violations of the H-2A program’s requirements. Earl Roy Farm similarly paid U.S. workers lower wages than H-2A workers, failed to reimburse H-2A workers for their transportation and failed to provide three-fourths of the guaranteed work hours. Additionally, Earl Roy Farm unlawfully laid off U.S. workers. The company will pay approximately $70,000 in back wages in addition to more than $30,000 in civil money penalties.

Guardian Article on Abuses and Fraud in H-2A Recruitment

A recent article in The Guardian details abuse and fraud in the recruitment of Mexican workers who come to the U.S. on H-2A visas. Even though recruitment fees are illegal under the program, many recruiters charge workers, who do not disclose the fees for fear of losing their visas and/or being blacklisted. Workers who arrive at their jobs already indebted are then vulnerable to labor abuses and trafficking. The article highlights the power imbalance between H-2A workers and their employers, as well as the lack of clarity about who the actual employer is given the prevalence of recruiters and labor contractors.

Civil Eats Article on Farmworkers’ Labor Rights

A recent Civil Eats article details farmworkers’ historic exclusion from labor protections and extremely low unionization rate. It highlights various farmworker unions: the United Farm Workers (UFW), Pineros y Campesinos del Noroeste (PCUN) and the Farm Labor Organizing Committee (FLOC), as well as the work of Familias Unidas por la Justicia and the Rural Migrant Ministry. The article also references the New York Farmworker Fair Labor Practices Act, which would remedy farmworkers’ exclusion from collective bargaining rights, among various other provisions advancing farmworkers’ labor rights. FJ’s President Bruce Goldstein recently testified before the NY State Senate in favor of the bill.  

New Immigration Proposal Introduced by White House

Yesterday (May 16), President Trump announced a new immigration plan focused on increasing the militarization of the border, weakening asylum protections and overhauling the country’s legal immigration system in favor of a “merit” points system. The White House proposal does not specifically address agricultural workers despite the demand by agricultural employers and farmworkers for immigration reform. The proposal has been labeled “dead on arrival” from all sides of the immigration debate. Among many issues, the plan does not offer immigration status or other relief to Dreamers or TPS holders and similarly lacks a solution for the approximately 11 million undocumented individuals currently in the country. If ever enacted, the proposal would be extremely harmful for many reasons, including by preventing the unification of families. The proposal’s emphasis on granting immigration visas to highly educated individuals ignores the reality of who fills essential jobs in our economy.

Update on Farmworker Health and Safety

State Actions on Chlorpyrifos

In the absence of progress at the federal level, several states are taking steps to end the use of the pesticide chlorpyrifos in agriculture.  Last week, the California EPA announced that it was beginning the regulatory process to ban its use in that state, and a bill to take swifter action is pending in the California Senate. On April 30, the New York state legislature passed a bill to ban the pesticide, and the Oregon and Connecticut legislatures are considering similar bills. Hawaii was the first state to pass legislation banning the pesticide last year. As stated by FJ’s Director of Occupational and Environmental Health, Virginia Ruiz: “There’s momentum now, and people and policymakers are becoming better educated about chlorpyrifos.” As noted in previous FJ updates, chlorpyrifos is a highly toxic pesticide that is linked to neurodevelopmental damage in infants and children. EPA banned its residential use in 2000. In 2016, EPA scientists recommended cancelling remaining uses of the pesticide, but in March 2017, the Trump Administration allowed its continued use indefinitely. Last month, the Ninth Circuit Court of Appeals ordered the EPA to issue a final decision regarding chlorpyrifos by July 18, in response to litigation and administrative objections by farmworker and environmental groups, including FJ.   

Midwest Examples Highlight Lack of Pesticide Incident Reporting

A recent Harvest Public Media investigation highlights the lack of adequate state and national records on pesticide exposure incidents, based on information from the departments of agriculture in various Midwestern states including Colorado, Illinois, Iowa, Kansas, Missouri and Nebraska. Among the problems identified is that some departments do not track incidents at all while others do not distinguish between human and other types of exposures. There is also a lack of coordination between state agricultural, health and environmental agencies. At the federal level, as detailed in previous FJ updates, the Environmental Protection Agency (EPA) recently updated the Worker Protection Standard (WPS). However, even with some of the crucial improvements in this regulation, the EPA still has little ability to monitor their implementation and determine how frequently workers are actually exposed. The issue of pesticide drift is of particular concern, as this is one of the most common ways in which individuals can be exposed. The new version of the WPS includes a safety measure, called the “Application Exclusion Zone,” or AEZ, that seeks to address and prevent this risk. Unfortunately, however, the EPA recently announced that it plans to issue a proposed rule to reconsider the AEZ, potentially weakening its scope and impact. We do not yet know the specific contents of the proposed rule. If and when it is published, FJ will work to submit comments that stress the importance of preventing exposures for both workers and bystanders.  

CMS Finalizes 2020 Benefit and Payment Parameter Rule

On April 18, the Centers for Medicare and Medicaid Services (CMS) issued its final 2020 Benefit and Payment Parameter Rule. This rule, issued annually, sets standards for the Affordable Care Act health exchanges including plan benefits, tax credits and cost-sharing as well as consumer outreach/in-person assistance. Among its provisions, the final rule eliminated the requirement that navigators provide post-enrollment assistance and reduced the training requirements for navigators. Navigators will no longer be trained to provide post-enrollment assistance and will only receive general trainings on topics such as the needs of underserved and vulnerable populations. Among the many implications of this final rule, there will be fewer navigators who are properly trained to assist farmworkers and other hard-to-reach/vulnerable populations in health insurance enrollment. There are also concerns that the final rule will reduce affordability for low-income consumers due to changes related to the premium adjustment percentage. More information about the final rule can be found here.

House Votes on Bill that Would Restore Funding for ACA Outreach and Enrollment

Yesterday (May 16), the House of Representatives passed a bill that would restore funding for ACA outreach and enrollment. H.R. 987, the Marketing and Outreach Restoration to Empower (MORE) Health Education Act, will restore funding for outreach and education activities in Federally-Facilitated Exchanges (FFEs). It will also limit funding for outreach activities to ACA-compliant plans, barring outreach funds from being used to promote short-term health plans. Since 2017, there have been significant cuts to funding for ACA outreach and enrollment. The Congressional Budget Office (CBO) estimates that the MORE Act could lead to an additional 500,000 individuals enrolling in coverage. The bill is part of the House’s broader health care legislation to improve financial assistance and strengthen protections under the ACA.

Update on Texas v. U.S. Lawsuit to Stop Implementation of the ACA

The Fifth Circuit Court of Appeals will hold a hearing on Texas v. U.S. in July. A date has not yet been set but oral arguments are expected to take place the week of July 8. California’s Attorney General, Xavier Becerra, is leading a coalition of 21 attorneys general in defense of the constitutionality of the ACA. The Fifth Circuit granted Wisconsin’s request to withdraw from litigation, leaving 18 states, led by Texas, and two individuals as plaintiffs. A press release from Attorney General Becerra's office can be found here.

Please join us at the annual Farmworker Justice Awards Reception in Washington, D.C. on Thursday, June 13, 2019!  

Action Alert – Sign the Petition to the EPA and Congress to Stop Pesticide Poisoning of Farmworkers & Their Children

Action Alert – Sign the Petition to the EPA and Congress to Stop Pesticide Poisoning of Farmworkers & Their Children

It’s wrong that farmworkers and their children continue to be exposed to the highly toxic pesticide chlorpyrifos. 

You can help right this wrong by signing the petition to ban agricultural use of chlorpyrifos.  We will send it to the Administrator of the Environmental Protection Agency (EPA), Andrew Wheeler, and key Members of Congress.  Our goal is 5,000 signers.

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.  
 

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