Below are our latest news on important news and events relating to policy changes and issues affecting farmworkers and their families.
The Trump Administration granted the demand of agricultural employers to have US consulates in Mexico process H-2A agricultural guestworker visas during the COVID-19 pandemic despite halting most other visa processes.
But we have not seen evidence that the Administration is requiring H-2A program employers to provide farmworkers – neither the foreign citizens nor the U.S. workers they recruit and hire -- with the information, protections or services they need against the COVID-19 pandemic.
As rural communities brace for the arrival of the novel coronavirus, a coalition of organizations representing rural communities is urging the administration to ensure that the rural health care system has adequate resources and support to respond to this crisis.
In a letter sent to President Donald Trump and U.S. Secretary of Health and Human Services Alex Azar, National Farmers Union, the American Federation of Teachers, Farm Credit Council, Farmworker Justice, the National Association of Counties, and the National Rural Health Association noted that while COVID-19 may be slower to spread to rural areas, its impact is expected to be at least as serious as it has been in urban areas. This is, in part, because rural Americans are more vulnerable to the virus but are less able to access treatment. “The greatest risk factors for severe illness from COVID-19 are advanced age and serious chronic medical conditions– both of which disproportionately affect rural Americans,” the coalition wrote. At the same time, those individuals are more likely to be poor and uninsured, making it difficult for them to afford testing and treatment services.
But because a spate of rural hospital closures over the past decade has left communities with a shortage of medical professionals, hospital beds, equipment, and funding, even patients who can afford treatment still may not be able to access it. “Even in the best circumstances, rural hospitals are often ill-equipped to handle acute medical issues,” the letter reads. “But in the event of a pandemic, understaffed and underfunded facilities will undoubtedly struggle to meet the needs of every patient.”
Farmworker Justice President Bruce Goldstein said,"Farmworkers -- people who labor on farms and ranches -- and their family members experience disproportionately poor health and inadequate access to health care. The COVID-19 pandemic creates tremendous risks for farmworker families due to their low wages, lack of employer-provided health insurance and limited resources of migrant health centers."
In anticipation of an influx of patients, the coalition outlined a list of recommendations that would expand the capacity of rural facilities, such as increasing the availability of necessary medical supplies and funding for hospitals, migrant health centers, and other community health providers. Such efforts will help rural Americans access necessary medical services during this crisis.
A copy of the letter is available here.
Farmworker Justice is a national advocacy organization based in Washington, DC. serving the nation's farmworkers. www.farmworkerjustice.org
Department of Labor Adopts Illegal Legal Interpretation Allowing Businesses to Escape Responsibility for Paying Minimum Wage by Using Subcontracting and Other Contingent-Labor Arrangements
The U.S. Department of Labor on Sunday announced a new policy that will be published in the Federal Register as a regulation on January 16. The policy is a misinterpretation of the Fair Labor Standards Act (FLSA), which mandates the minimum wage, overtime and child labor restrictions. The rule will mostly likely guide the Department of Labor’s Wage and Hour Division, which enforces the FLSA. Although the new policy is meant to inform courts about the meaning of the law, this misinterpretation of the law and court decisions should not be followed by the courts.
The new policy severely limits the situations in which businesses that share responsibility for employment of workers would be found to both be “employers” and therefore be deemed to be “joint employers” that are responsible for paying the minimum wage and overtime and complying with child labor restrictions. (Farmworkers are not covered by overtime pay.)
The DOL’s policy contravenes key provisions in the FLSA through a convoluted analysis of the words in the law. Congress in the FLSA used a broad definition of the word “employ” that the agency intentionally ignores. Congress intended to provide workers with meaningful minimum protections that could not be easily evaded and to protect law-abiding businesses from unfair competition by companies that engage in substandard labor practices.
The DOL’s policy essentially means that it will rarely find that two businesses jointly employ workers because it adopts a harmful test that insists that to be an employer a business must be shown to control the minute details of how workers perform their work and exercise other specific actions, which will often lead to the false conclusion that only one business is the “employer.”
Joint employer status is especially important in agriculture, where many farm operators utilize farm labor contractors (FLCs) to recruit and supervise farmworkers. The existence of joint employer liability helps to encourage farm operators to choose their FLC’s carefully, demand compliance with the law, compensate the FLC’s appropriately so that workers receive required compensation, and monitor their conduct. Too often, when farmworkers suffer violations of their rights, a farm operator denies it is the “employer” of the workers and the farm labor contractor lacks the assets to pay a court judgment.
“By sending the message that the Department of Labor’s enforcement will rarely find joint employer liability in common situations where wage theft occurs, the agency encourages some farm operators to ignore what happens on their farm, including substandard wages and use of underage child labor,” said Bruce Goldstein, President of Farmworker Justice, which submitted comments on the proposed rule that were quoted and dismissed by the Department of Labor in explaining its final decision. “The rule creates an incentive for farm operators to minimize their labor-related costs by paying farm labor contractors at levels that are inadequate to provide farmworkers with the minimum wage and ignoring the use of child labor on the farm,” he added.
Farmworker Justice is a national advocacy and litigation organization for farmworkers, and has a long history of seeking enforcement of the joint employer liability concept due to rampant wage theft and widespread use of farm labor contractors who are used to evade the law. Information about the Joint Employer issue is available on our website. https://www.farmworkerjustice.org/resources/immigration-labor/labor-rights-farmworkers/joint-employer-standard
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Farmworker Justice
