FJ Blog

Friday, 01 May 2015

Yesterday FJ released our report reviewing US DOL’s enforcement in agriculture (available here). The report “U.S. Department of Labor Enforcement in Agriculture: More Must be Done to Protect Farmworkers,” analyzes 8 years of DOL’s statistics on its enforcement of the minimum wage and other basic labor protections applicable to agricultural workers on farms, ranches, and dairies. The report concludes that despite some recent improvements, more enforcement is necessary in order to improve the conditions in our fields. Consumers of fruits and vegetables want to know that farmworkers in the field are treated decently, and law-abiding growers do not want to be undermined by businesses that violate wage-hour laws, but the reality is that there are widespread violations in agriculture.

While DOL’s enforcement is central to addressing and deterring these violations, our broken immigration system is another key factor. As we have pointed out, without immigration status, many farmworkers are too fearful of deportation to step forward to enforce their labor rights. In the majority undocumented farm labor force, this has had a devastating impact on farmworkers’ wages and working conditions as well as the level of workplace violations. Our new report shows that DOL found violations in almost 70% of the investigations taking place over an eight-year period during the Obama Administration. Immigration reform that provides a path to citizenship is key to stabilizing the farm labor force and improving wages and working conditions for farmworkers. President Obama’s November 20, 2014 administrative actions are an important step forward and could reach roughly 700,000 farmworkers and spouses, providing them with both work authorization and protection from deportation. A recent piece from the Center for American Progress in honor of May Day highlights the benefits that President Obama’s administrative relief would bring to farmworkers.

As you all know, unfortunately, the Texas v. US litigation has continued to delay implementation of these administrative relief programs with the district court’s February 16 injunction still in place. Following the oral arguments on the government’s emergency motion to stay the injunction held on April 17, we are still awaiting a ruling from the 5th Circuit. The US government’s appeal of the injunction is also still pending in the 5th Circuit and oral arguments have been tentatively scheduled for the beginning of July. As you can see, litigation – the “wheels of justice”—often move slowly and can sometimes be a tool for the unjust as well. FJ and other legal experts remain confident in the legality of the President’s actions and continue to defend his actions and plan for a favorable resolution of the case and successful implementation of the DAPA and expanded DACA programs.

Congress: Anti-immigrant sentiment continues to be on display in Congress. On Wednesday, the House Judiciary Committee held a hearing on birthright citizenship and whether it is the right policy for America. For those of you familiar with the Constitutional amendments, you will recall that the notion of birthright citizenship derives from the 14th Amendment, which was passed at the end of the Civil War to ensure that all of those born into slavery would be entitled to citizenship. Two Congressional members, Representative Steve King (R-IA - the vehemently anti-immigrant member infamous for his “cantaloupe” calves comment about DACA youth) and Sen. David Vitter (R-LA) have introduced bills to end birthright citizenship. While these bills are not likely to go anywhere, it is extremely troubling that this issue is even receiving serious consideration as the subject of a House hearing. The hearing also suggests that the House is not yet done pandering to its extreme anti-immigrant members.

Along with this theme of extremism and failure to heed public consensus for sensible reform, the House also seems to be intent this Congress on continuing its failed history of pursuing one-sided guestworker reform legislation. On April 15, several members of New York’s congressional delegation, led by Rep. Gibson (R-NY), reintroduced the failed “Family Farm Relief Act of 2015,” HR 1805. The bill proposes to expand the H-2A guestworker program and remove oversight and protections instead of addressing the need to legalize the current experienced workforce. The bill would expand the H-2A program to include year-round livestock workers, including those at dairy operations. This expansion would not include any opportunity for the current experienced work force to obtain immigration status and does not seek to address the rampant abuse in the program. The bill would also transfer the H-2A temporary foreign agricultural worker program from the DOL to the USDA despite the fact that the USDA has no experience running any such programs. Finally, the bill would strip existing recruitment protections for US workers applying for these and other agricultural jobs, resulting in tremendous job loss for US workers across the industry. FJ will prepare and share an analysis of the legislation in the upcoming weeks as we continue to educate members of Congress about why guestworker-only proposals will fail agriculture and this nation. On these points and the need for comprehensive immigration reform, FJ’s president Bruce Goldstein published two recent Letters to the Editor in the Wall Street Journal and the South Carolina Greenville Online.

New regulations in H-2A range worker and H-2B programs: On the issue of guestworker programs, the Department of Labor has issued two recent notices relevant to agriculture: H-2A sheep/goat herder and open range livestock workers and H-2B comprehensive and wage regulations. On April 15, 2015, in response to a court order, the Department of Labor published a notice of proposed rule making for sheepherders, goatherders and range livestock workers. The proposed rules are welcome and long overdue, but must be strengthened. Range workers have long been excluded from many of the limited but important H-2A program protections. Due to the politically powerful ranching lobby, there have been longstanding “special procedures” for herder and range livestock H-2A workers. Under the DOL proposed regulations, wages would be strengthened and there are other improvements as well, such as greater clarity about the tools and supplies employers must provide free of charge. However, the proposed regulations must be strengthened. For example, while the wage requirement in most states -- $750 a month—would increase by more than double, the increase phases in too slowly, does not adequately compensate range workers for all of the hours they work while on call 24/7, and does not ensure workers have access to their earnings. Further, there is need to strengthen the range housing requirements for basic necessities such as heating and food storage. We urge you to weigh in for greater protections for sheepherders and will share model comments and/or a sign-on letter by May 11.

Also this week, the DOL and DHS jointly issued interim final H-2B regulations following years of litigation over the H-2B program. The rules were effective immediately and will be finalized following a 60-day comment period. The H-2B comprehensive rules, which are very similar to the 2012 rules, are a victory for US and H-2B workers. The rules would ensure greater protections for H-2B workers during recruitment abroad and on the job, as well as greater protection for US workers who are interested in the positions. Centro de los Derechos del Migrante has indicated concern, however, that the wage rule may lead to lowered wages due a loophole allowing industry wage surveys. More information will be shared as it is available.

by Jessica Felix-Romero
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Friday, 10 April 2015

Today is  National Youth HIV and AIDS Awareness Day (NYHAAD). Today’s generation of youth has never known a world free of HIV and AIDS and they bear a significant burden of the epidemic.

According to the Centers for Disease Control and Prevention (CDC), in 2010, youth accounted for 26 percent of new HIV infections in spite of only representing 17 percent of the population. Approximately 50 percent of youth infected with HIV are unaware of their positive status. In comparison, among all HIV positive individuals in the U.S., approximately 14 percent are unaware of their status.

In the United States, one in four new HIV infections per year occurs among youth. Black and Latino youth remain disparately affected compared to youth of other races/ethnicities. According to the CDC, 20 percent of new infections occurred among Latino youth in 2010.

There are a variety of factors that may influence the risk Latino youth face for contracting HIV. These include but are not limited to: low perception of risk, limited opportunities for accessing comprehensive sexual education; cultural and linguistic barriers which deter engaging in preventive treatment and care; lack of health insurance; poverty; higher reported rates of STIs; stigma and discrimination.

Advocates for Youth established NYHAAD in 2013 to increase awareness of the impact HIV/AIDS has on young individuals, and to promote intergenerational dialogue and collaboration in the campaign to achieve an AIDS-Free generation. The theme for this year is “Engaging Youth Voices in the Responses to HIV & AIDS”.

Farmworker Justice encourages our partners, supporters and friends to join us in recognizing National Youth HIV and AIDS Awareness Day by: learning more about the epidemic and knowing the facts; becoming involved in efforts to raise awareness; engaging in open and honest conversation with family, partner and friends; and getting tested.

by Caitlin Ruppel
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Friday, 03 April 2015

Cesar Chavez Day and National Farmworker Awareness Week

Tuesday was Cesar Chavez Day – a day to honor the farmworker civil rights leader that continues to inspire many. Cesar Chavez Day marked the culmination of Farmworker Awareness Week. Farmworker Awareness Week is an opportunity for farmworker groups across the country to conduct events and engage in social media to raise awareness of the contributions farmworkers make and the challenges they face. To mark Cesar Chavez Day, Farmworker Justice attended a ceremony at USDA naming a courtyard in honor of Cesar Chavez; participated in a panel discussing immigration and the agricultural sector to highlight the need for comprehensive immigration reform with a path to citizenship for farmworkers; and delivered a petition with over 21,000 signatures to the EPA urging them to finalize the update to the Worker Protection Standard which protects farmworkers from pesticides. Of course, the fight for justice for farmworkers extends beyond this week and we look forward to continuing our work with many of you to make this happen.

Texas v. US

As reported in the last update, the Department of Justice has requested that the Fifth Circuit Court of Appeals issue an emergency stay blocking the district court judge’s injunction of DAPA and expanded DAPA until the appeal can be heard. The Fifth Circuit Court will hold oral arguments on the DOJ’s request for an emergency stay on April 17th. Presumably the court will make a decision soon thereafter. Even if the 5th Circuit fails to stay the injunction, this does not mean that the Obama Administration has lost the case, it simply means that the Court wants to leave the injunction in place until they have time to decide the full appeal. The Fifth Circuit also set a briefing schedule for the appeal of the district court’s injunction. The final brief will be due on May 18th. The court has not yet scheduled a date for oral arguments of the appeal and it has not disclosed the names of the judges who will sit on the 3-judge appeals panel.

Potential applicants for DAPA and expanded DACA are encouraged to continue saving money and collecting documents to prepare for the application process once it is implemented. For more information on DAPA and expanded DACA, read Farmworker Justice’s article (in English and Spanish) in the most recent Catholic Migrant Farmworker Network Newsletter attached to this email.

The House: Mandatory E-Verify

Immigration advocates and some others, including many agricultural employers, continue to highlight the devastation an enforcement-only approach such as mandatory E-Verify would have on our economy, on our nation’s aspiring Americans and on industries such as agriculture. Earlier this week, 61 Members of Congress (55 Republicans and 6 Democrats) sent a letter to Speaker Boehner and Judiciary Chairman Goodlatte expressing their concern that enacting mandatory E-Verify without ensuring “a legal, reliable workforce in both the short and long term” would “cause serious problems for our domestic agricultural industry and our nation’s economy. Farmworker Justice agrees that mandatory E-verify on its own would be devastating for farmworkers and their families. Our broken immigration system must be addressed through comprehensive immigration reform that provides a path to lawful permanent residency and eventual citizenship for the 11 million, including farmworkers and their families. We would strongly oppose any effort to pair mandatory E-Verify with a new guestworker program for agriculture. This would result in even greater devastation for agriculture, as US workers would be displaced by the new visa program, guestworkers would face great worker abuses, and the current experienced undocumented workforce would be pushed into an underground economy where they would be even more vulnerable to exploitation.

The letter also critiques the H-2A program as being unworkable for employers. We disagree and are educating congressional offices about the recent growth of the H-2A program as employers increase their use of it. At the same time, the increase in the numbers of employers using the H-2A program concerns us as the worker’s temporary nonimmigrant status and their tie to the employer that brings them here leads to great vulnerability and exploitation of both H-2A and US workers. Immigration reform is urgently needed.

The number of Republicans on the letter demonstrates a challenge House leadership may have trying to pass legislation such as mandatory E-Verify on its own. We will be advocating to ensure legislation such as E-Verify does not pass without broader immigration reform, including a path to citizenship.

Senate Hearing

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing on “Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows.” The witnesses were Jeffrey S. Passel, Ph.D., Senior Demographer, Hispanic Trends Project, Pew Research Center; Daniel Garza, Executive Director, The LIBRE Initiative; Madeline Zavodny, Ph.D., Professor of Economics, Agnes Scott College and Adjunct Scholar American Enterprise Institute; Randel K. Johnson, Senior Vice President, Labor, Immigration, and Employee Benefits, U.S. Chamber of Commerce; and Marc R. Rosenblum, Ph.D., Deputy Director on Immigration Policy Program, Migration Policy Institute. The hearing focused on future guestworker programs, with some background discussion of demographic information regarding where the undocumented population resides and in what occupations they work (presumably to address where such future guestworker program would be needed). 

With the exception of Passel, whose organization does not take policy positions, the panelists advocated for a new “market-driven” guestworker program with visa portability. The witnesses generally agreed that wages, payroll treatment and benefits provided to guestworkers should be the same as those provided to US workers. One point of disagreement was that Rosenblum argued for robust workplace enforcement of labor protections, whereas Johnson and Garza expressed concerns related to protecting "innocent employers" from investigations by the Department of Labor's Wage and Hour Division. Another point of disagreement was the issue of circularity, that future guestworker should be encouraged to go back and forth between the US and their country of origin. Zavodny and others emphasized encouraging circularity, while Rosenblum said that workers shouldn't necessarily be forced to return. If workers have jobs and want to stay in the US, there should be a way for them to adjust to permanent residence status. 

Farmworker Justice opposes the notion of guestworker programs; however, we supported the agriculture compromise in last Congress’s Senate comprehensive immigration reform bill, S. 744, recognizing the political realities at the time and believing that the bill would benefit immigrants, including farmworkers, because of its path to citizenship for the undocumented and some future guestworkers, as well as key worker protections. Regarding the question of the permanency of “guest” workers, Farmworker Justice believes that guestworkers should be able to become full members of our society through a path to citizenship. While some foreign workers may choose not to remain permanently in the United States, that choice should be theirs. Even for those workers who may eventually return to their country of origin, lawful permanent residency gives them freedom and workplace equality that even the best structured guestworker program will never be able to offer. From our perspective, a discussion about future guestworker programs outside of the context of comprehensive immigration reform and without key stakeholders is troubling. 

New H-2A Sheepherder Regulations

The Department of Labor has been ordered to properly promulgate rules for the H-2A open range livestock workers by a federal court. The plaintiffs in the lawsuit are US workers and former herders who would like to be sheepherders if they were offered living wages and better living conditions. Range sheepherding is almost exclusively done by foreign H-2A workers and the unreasonably low-wages have remained stagnant for years, preventing US workers from entering the labor market. It’s high time for DOL to reform this inhumane program. The Department of Labor’s notice of proposed rulemaking is due out by April 15th. Keep an eye out for requests to sign-on to comments.

In advance of the new regulations coming out this April regarding protections for H-2A sheepherders, employers are already crying wolf that they will go out of business if they have to pay a living wage or provide decent housing for their employees. The employer-driven media, however, fails to note that the monthly wage provisions are just $750 a month in most states for sheep and goatherders to tend their flocks around the clock. While the federal law exempts sheepherders from the minimum wage, herders in Oregon and California are covered by state minimum wage laws and receive higher wages, $1,603.00 and $1,422.52 a month respectively. The ranchers in these states have not gone out of business paying these wages. Sheepherder wages may even need to be higher in order to attract US workers to the jobs. The DOL should come up with a formula that takes into account the adverse effect wage rate used for all H-2A non-sheepherders. If wages are increased across the H-2A sheepherder program, the playing field will be leveled for employers across the US.

Herders also often live in extremely isolated conditions, with some workers living in small mobile homes with no heat or refrigeration. With no access to stores, the herders rely on their employers to bring them food once a week and there have been many stories of workers going hungry. Herders’ extreme isolation and low wages make them very vulnerable to wage theft and trafficking. We look forward to DOL’s upcoming reforms to improve wages, living and working conditions for workers in this historically abusive program.

The H-2B Rules

Centro de Los Derechos del Migrante and Polaris have created a petition urging the Department of Homeland Security and the Department of Labor to jointly issue the 2012 H-2B rules that provide for increased worker protections for H-2B temporary nonagricultural workers. You can sign-on to the petition here

by Megan Horn
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