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New Farmworker Justice Report Quantifies Wage Loss to Tens of Thousands of Farmworkers in Proposal in Congress and the Administration

Friday, 08 May 2020

For Immediate Release

May 8, 2020 Bruce Goldstein

Washington , D.C. bgoldstein@farmworkerjustice.org

New Farmworker Justice Report Quantifies Wage Loss to

Tens of Thousands of Farmworkers in Proposal in Congress and the Administration

Farmworker Justice, the Washington, D.C.-based national advocacy organization for farmworkers – the people who labor in the nation’s farms and ranches – and their family members, has issued a new report regarding proposals to lower farmworkers’ wages. Congress and the Administration Must Not Cut Farmworkers’ Wages in the H-2A Guestworker Program.

There is a proposal in a bill in the House of Representatives to lower wage rates for tens of thousands of farmworkers and that proposal is also under consideration by the Trump Administration in a long-planned change to regulations.

The proposed wage cut would occur under the H-2A temporary foreign agricultural worker program. In fiscal year 2019, the Department of Labor approved 257,000 H-2A jobs, a number that has been increasing in recent years.

Employers obtaining approval to hire agricultural guestworkers on H-2A visas must offer certain minimum wages to both the foreign citizens and the U.S.-based farmworkers who apply for and obtain jobs at these employers. The current formula for the main wage rate is a survey of the labor market. Rather than use a measure of the prevailing wages to prevent depression in farmworkers’ wages, the proposal would allow the hiring of guestworkers and US workers at an arbitrarily lower wage rate.

The result would be massive wage cuts. For example, in Florida the 2020 wage would be $3.15 per hour lower than it is now. If the proposal had been in force in 2019, the report – using U.S. Department of Labor Data – finds that the wage cut would have been $2.78 per hour and farmworkers at Florida H-2A employers on average would have been paid $101 less per week.

“Massive wage cuts for essential workers cultivating and harvesting our fruits and vegetables would be unconscionable,” said Bruce Goldstein, President of Farmworker Justice, a co-author of the report. “The H-2A agricultural guestworker program has modest protections against depressing the wage rates of U.S. farmworkers and against the exploitation of foreign citizens employed as agricultural guestworkers. This report quantifies the tremendous economic harm that a proposed wage cut inflict on farmworkers, who already are among the lowest-paid workers in the nation.”

Farmworker Justice is a national advocacy, litigation and education organization based in Washington, D.C. Its mission is to empower farmworkers to improve their wages and working conditions, immigration status, occupational safety, health and access to the justice system. Throughout its 39-year history it has engaged in substantial policy analysis, advocacy, litigation and support to farmworker organizations regarding immigration policy and guestworker programs. Information about the H-2A program is available on its website resource center at https://www.farmworkerjustice.org/resources/h-2a Information about recent legislative proposals in Congress on farmworker immigration and the h-2A program is available at https://www.farmworkerjustice.org/resources/116th-congress-2019-2020

Bruce Goldstein, its president, is a labor and civil rights attorney who has worked on farmworker issues for 32 years. Bruce Goldstein bgoldstein@farmworkerjustice.org

Farmworker Justice Press Statement for EWG Press Call on Rep. Khanna and Sen. Warren’s Essential Workers Bill of Rights

Good afternoon. My name is Alexis Guild. I am the Director of Health Policy and Programs at Farmworker Justice. Farmworker Justice is a national farmworker advocacy organization based in Washington, DC. We appreciate the opportunity to be here today to discuss the need for protections for workers on farms and ranches during the COVID-19 pandemic.

Farmworkers have been designated essential workers who are expected to work. They are at the front lines of the pandemic, risking their own health to ensure a stable supply of fruits, vegetables, milk and other products. We are concerned about the health and safety of farmworkers. Farmworkers are getting sick from COVID-19 and the worst may be yet to come. We are hearing from workers that many employers are not following CDC recommendations. Farmworkers’ working and living conditions often place them in danger of exposure to COVID-19. They tend to lack adequate access to handwashing stations in the fields, are not necessarily provided personal protective equipment such as masks, and often live in crowded and substandard housing. Few receive health insurance from their employers and their low wages mean that many do not have regular access to health care. The majority of farmworkers are undocumented immigrants and they are especially vulnerable to exploitation and are ineligible for public programs and benefits such as Medicaid and SNAP. The refusal of federal OSHA to issue an Emergency Occupational Safety Standard denies many farmworkers protections for themselves and their families during the COVID-19 pandemic.

Farmworker Justice is working with advocates and partners across the country to raise the concerns of farmworkers, help farmworkers protect themselves and their family members, and advocate for protections at the federal and state level. We commend Congressman Khanna and Senator Warren for their Essential Workers Bill of Rights, which recognizes the important contributions of farmworkers and others and provides solutions to ensure workers are protected and treated with dignity. We strongly believe that the Bill of Rights, which includes health and safety protections, meaningful compensation in the form of hazard pay and the guarantee of a livable wage, universal access to paid sick and family leave, and access to health care regardless of insurance or immigration status, are crucial for farmworkers, their families, and rural communities.

Farmworkers should be able to work without fear about what will happen if they become ill. The COVID-19 pandemic has highlighted the essential role of farmworkers in our nation’s economy and the hazards they confront everyday for our food security. Congress should pass legislation that includes the policies in the Essential Workers Bill of Rights. Thank you.

Farmworker Justice Statement on Trump’s Suspension of Immigration: Agricultural Guestworkers Are Exception and Are Subjected to Dangerous Risks of Exposure to COVID-19 Without Health Care

President Trump’s announcement of a planned executive order to suspend all immigration reportedly will NOT terminate visa processing and hiring of agricultural guestworkers under the H-2A temporary foreign agricultural worker program. In fact, the Trump Administration has issued a series of orders granting agricultural employers additional flexibility in bringing in and employing H-2A visa workers. About 250,000 guestworkers were approved in FY 2019, about 10% of the farm labor force of roughly 2.5 million.

Farmworker Justice Statement on USDA and DHS Policy Announcement re H-2A Agricultural Guestworker Program: Flexibility for Employers and No Action to Protect Farmworkers from COVID-19 or Ensure Access to Testing or Health Care

The USDA and DHS today announced that agricultural employers that have received approval to hire guestworkers under the H-2A agricultural guestworker program will have flexibility to hire guestworkers already in the country even if they ordinarily would be required to go home after their previous H-2A employer’s job ended. The announcement also said H-2A workers, who are supposed to fill jobs that are seasonal or temporary, could stay for longer periods of time if an H-2A program employer hires them.

Farmworker Advocates Seek Protections Against COVID-19 for Agricultural Guestworkers

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.

The attached letter from 37 national, regional and local organizations serving farmworkers requests specific actions by the Trump Administration regarding its responsibilities to ensure the safety and health of farmworkers, both U.S. workers and foreign workers, who are recruited, hired, transported, housed and employed by employers participating in the H-2A temporary foreign agricultural worker program. Last year, about 250,000 H-2A guestworkers (mostly from Mexico) were hired, about 10% of the U.S. farm workforce.

The foreign workers and U.S. workers who migrate to jobs on farms participating in the H-2A program often travel long distances in crowded commercial buses and other vehicles. They typically reside in barracks-style housing, crowded together with limited sanitary facilities. They often work in groups in the fields, touching equipment and packaging as well as crops, with limited access to handwashing facilities or sanitizer. They depend on their employers for access to stores and health care, which is often limited in rural areas.

The CDC recommendations regarding physical distancing and sanitation need to be followed. Workers need accurate, timely information in languages they understand and the resources to follow them. If they become ill, workers need appropriate medical testing and care as well as economic support.

The letter, coordinated and co-written by Farmworker Justice, demands prompt responses from the Departments of Labor, State and Homeland Security in their administrative roles under the H-2A program.

The Administration recognized farmworkers as “essential” workers in a “critical infrastructure sector” and took extraordinary steps to continue the H-2A program’s hiring of foreign workers. These workers and their U.S. counterparts must be treated with respect and given the tools and resources needed in this pandemic.

This important effort is only one of many that our staff and partners are pursuing to help farmworkers and their organizations. There is much more to do. Your support makes our work possible.

Best wishes to all of you.

Bruce Goldstein

President

Farmworker Justice

Unique Coalition Seeks Administration’s Support on Rural Health Care in COVID-19 Crisis

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

Farmworker Advocates Coalition Submits Comments on Major Trump Administration Proposal re Agricultural Guestworkers

On September 24, Farmworker Justice, on behalf of 42 organizations, submitted to the US Department of Labor a 165-page comment and numerous exhibits responding to the DOL’s proposed changes to the H-2A temporary foreign agricultural worker program.

Farmworker Justice staff coordinated the comment process and, with several farmworker advocacy groups around the country, co-wrote and edited the detailed comment. We also drafted shorter model comments which many farmworker-supporting organizations used to write their own comments.

DOL proposed extensive changes to the H-2A guestworker program regulations. They would substantially alter or eliminate many labor protections for U.S. and H-2A visa workers.

Under the complicated proposal, many farmworkers at H-2A program employers would be subjected to lower wages. Recruitment of qualified U.S. workers would be reduced, allowing employers to act on their preference for exploitable guestworkers. Guestworkers would bear more of the costs of travel to the U.S., leading to more worker debt and forcing workers to accept abusive conditions for fear of being fired, deported and unable to repay the debt. Housing safety requirements would be reduced. While some workers would see limited improvements on some issues, even if they appear in the final rule, they do not outweigh the harm.

The H-2A program is rapidly expanding, with almost 250,000 approved H-2A jobs in FY 2018. (There is no annual visa limit on H-2A visas and almost all employer applications are approved.) Thus, the proposed changes to the H-2A program will have increasingly substantial effects on farmworkers across the nation.

Next, the Department of Labor will review the comments submitted by several thousand organizations and individuals and issue a final regulation.

You may read the lengthy comment here and the much shorter model comment here.

Farmworker Justice Statement on the U.S. Department of Labor’s New “Joint Employer” Interpretation under the Fair Labor Standards Act

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 Statement on Vote to Approve Agricultural Worker Immigration Bill by House Judiciary Committee

Farmworker Justice appreciates the markup and the vote by the House Committee on the Judiciary on November 21 to support passage of the Farm Workforce Modernization Act of 2019, HR 5038. We thank the Committee Chair, Rep. Nadler, for the markup of this important bill regarding our agriculture and food system.

Farmworker Justice is grateful to Rep. Lofgren, Chair of the Subcommittee on Immigration and Citizenship, and Rep. Newhouse, as well as additional colleagues, for the extensive efforts they made to engage with Farmworker Justice, the United Farm Workers, the UFW Foundation, major agricultural employer organizations and other stakeholders to arrive at a compromise that garnered widespread support. As the diverse viewpoints expressed during the markup demonstrated, achieving agreement required extraordinary effort and skill.

This legislation recognizes the important contributions of farmworkers to our nation’s food and agriculture systems. An estimated 2.4 million people labor on our farms and ranches to provide us with fruits, vegetables, milk and other food. Roughly half of farmworkers lack authorized immigration status. Undocumented farmworkers and their family members live in fear of arrest, deportation and the breakup of their families. In these circumstances, many farmworkers are reluctant to challenge illegal or unfair treatment. At times, they cannot go to work due to the presence of immigration enforcement agents. The country’s farms and our food system depend on immigrants, both documented and undocumented, and reform is long overdue.

The Farm Workforce Modernization Act bill provides a path to lawful permanent residency for undocumented farmworkers and their family members. Removing the threat of immigration enforcement would reduce the stress on farmworker families and the disruptions of farming businesses. Legal status would help farmworkers improve their wages and working conditions. These improvements would result in a more stable farm labor force and greater food safety and security. The earned legalization program’s requirements are more rigorous and expensive than we would have preferred, but are acceptable to achieve a realistic compromise,

The bill also would revise the existing H-2A agricultural guestworker program to address farmworker and employer concerns with the program. The bill includes important new protections for farmworkers, as well as numerous changes to address agricultural employers’ concerns. Compromise was necessary to achieve legislation that could become law and address serious harms imposed on farmworker families by our broken immigration system.

Farmworker Justice appreciates the Judiciary Committee’s vote in favor of the Farm Workforce Modernization Act of 2019 because the bill, if passed, would enable hundreds of thousands of farmworker families to improve their living and working conditions and their participation in our economy and democracy.

Farmworker Justice www.farmworkerjustice.org November 21, 2019

Farmworker Justice Statement on House Agricultural Immigration Reform Bill

Farmworker Justice Statement on House Agricultural Immigration Reform Bill

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

Farmworker Justice President Bruce Goldstein stated: “We applaud the bipartisan work in the House to address the fundamentally unfair conditions experienced by many farmworkers due to our nation’s broken immigration system. Farmworker Justice supports this important legislation. The bill provides a path to lawful permanent residency for undocumented farmworkers and their family members. The bill also revises the H-2A agricultural guestworker program. While we are concerned by some aspects of the bill, it preserves and expands important protections for US and foreign workers and we recognize that reform requires compromise.”

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 farmworker 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 includes important new protections for farmworkers, but also contains difficult concessions that were made in order to reach an agreement.

The legislation is a fair compromise that includes concessions from all sides. Farmworker Justice supports the Farm Workforce Modernization Act of 2019 because the bill, if passed, would improve significantly hundreds of thousands of farmworkers’ lives.