Pesticides

Farmworker Justice Update: 11/13/19

 

Farm Workforce Modernization Act Introduced

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

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

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

DACA Goes to the Supreme Court

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

November 21 Appropriations Deadline Approaching

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

DOL Releases Fourth Quarter H-2A Data

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

Article Highlights Lack of Overtime Pay for Farmworkers

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

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

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

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

El Salvador TPS Holders Receive One Year Work Visa Extension

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

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

 

Update on Farmworker Health and Safety

EPA Announces Proposed Changes to the AEZ  

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

California Fires Disrupt and Endanger Farmworkers

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

The Department of State Released a Proposed Rulemaking on Public Charge

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

ACA Health Insurance Open Enrollment

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

Farmworker Justice Update: 10/21/19

 

H-2A International Recruitment Fraud Puts Workers into Debt

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

California Law Creates Opportunities for More Farmworker Housing

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

November Appropriations Deadline Approaching as Funding Deal Remains Elusive

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

DACA Recipients Encouraged to Renew Status before Supreme Court Hearing

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

Former Acting DHS Head McAleenan Departs Agency

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

 

Update on Farmworker Health and Safety

Several Courts Issue Injunctions Stopping Implementation of Public Charge Rule  

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

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

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

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

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

State Department Issues Related Public Charge Rule

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

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

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

California Reaches Agreement Banning the Sale and Use of Chlorpyrifos

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

EPA Issues Draft Risk Assessments for Paraquat

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

EPA Creates Guide to Aid Translation of Pesticide Labels

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

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

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

Farmworker Justice Update: 09/27/19

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

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

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

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

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

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

Senate Confirmed Anti-Worker Secretary of Labor

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

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

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

  

Update on Farmworker Health and Safety

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

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

Pesticide Exposure Makes Around One Hundred Workers Sick in California Fields

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

Farmworker Justice Update - 08/22/19

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

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

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

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

New Jersey Enacts a New Wage Theft Law to Protect Workers

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

 680 Workers Arrested in Mississippi Worksite Raids on Poultry Plants

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

Washington Farmworkers Participate in March for Dignity

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

A Farmworker Provides a Firsthand Account of His Experience

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

Car Drivers Harassing Head Start Buses with Migrant Workers’ Children

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

Update on Farmworker Health and Safety

Department of Homeland Security Finalizes Public Charge Rule

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

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

Farmworker Justice and Allies Sue EPA Over Chlorpyrifos Decision 

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

EPA Will Not Require Cancer Warnings on Products Containing Glyphosate

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

 

Farmworker Justice Update - 07/11/19

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

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

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

Sen. Paul Reintroduces H-2A Expansion Bill 

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

Farmworker Justice Freedom of Information Act Lawsuit

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

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

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

Article on Labor Trafficking in Agriculture 

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

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

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

New York Passes Landmark Farmworker Legislation 

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

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

Update on Farmworker Health and Safety

House Bill Calls for Federal Protections against Heat Stress 

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

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

Senate Bill Seeks to Protect Farmworkers from Smoke Exposure

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

Two Mass Pesticide Exposure Incidents Within Two Weeks in Fresno County  

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

Article on Valley Fever in Farmworker Communities 

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

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

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

California Expands Medi-Cal Coverage to Undocumented Young Adults

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

FJ’s Illustrated Diabetes Brochure for Farmworkers

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

Farmworker Justice Update - 06/07/19

Farmworker Justice Update: 06/07/19

Dream and Promise Act Passed in House

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

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

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

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

New York Court Rules Farmworker Collective Bargaining Exclusion Unconstitutional

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

New York Legislation on Equal Labor Rights for Farmworkers Still Pending

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

Dairy Workers in Washington Doubly Damaged

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

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

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

Human Trafficking Case Involving Mexican Workers in Wisconsin and Georgia

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

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

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

Recent DOL Enforcement Actions against Agricultural Employers

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

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

Update on Farmworker Health and Safety

Idaho Farmworkers Exposed to Toxic Substance

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

California State Assembly Passes Farmworker Housing Act of 2019

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

Public Water Systems in Some California Farmworker Communities Serve Unsafe Water

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

Farmworker Justice Award Reception

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

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.

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