Farmworker Justice Update: 11/29/18

Ag Employers Seek to Avoid 2019 H-2A Wage Increases

In a November 28 letter to Labor Secretary Alexander Acosta and Secretary of Agriculture Sonny Perdue, the National Council of Agricultural Employers (NCAE) asked for “short-term relief” from the federal government from the expected Adverse Effect Wage Rate (AEWR) for H-2A workers. On November 15, the National Agricultural Statistics Service (NASS) released a report showing the average wages paid to nonsupervisory field and livestock workers for 2018. As stated in the current regulations, the 2019 AEWR will be these wage rates. Based on the data, hourly wages would increase approximately 6% nationwide, with higher increases for some states. The NCAE refers to the AEWR as a “premium wage;” however, this term is fundamentally and disingenuously wrong as the AEWR is merely the average wage paid to nonsupervisory field and livestock workers as determined by USDA’s farm labor survey. By definition, an average means that some employers pay more than the average wage. One would expect that an employer truly facing a labor shortage would seek to attract U.S. workers by offering more than the average wage, and yet the H-2A program allows employers to demonstrate a labor shortage merely by offering the average.

Failing to implement the AEWR – which would effectively lower H-2A wage rates in most areas around the country in 2019 – would adversely affect the wages and working conditions of U.S. workers. Farmworkers’ wages are among the lowest in the nation, but by several measures have been increasing modestly in the last few years. In California, a wage freeze would keep the AEWR at $13.18 (which was the 2018 AEWR based on 2017 USDA surveys), instead of rising to $13.92. In North Carolina and Virginia, the rate would be frozen at $11.46 per hour, instead of rising in 2019 to $12.25. In Idaho (and Montana and Wyoming), the freeze would keep wages at $11.63 per hour instead of rising to $13.48. In Florida, the freeze would stop a slight drop of 5 cents per hour. There is a long history of regulation and litigation regarding the AEWR, and we anticipate that Farmworker Justice and others would litigate against the Administration if it attempts to undermine U.S. farmworkers’ wages by lowering H-2A program wage rates.

California Ag Employer Reaches Settlement over Farmworker Transportation Pay

Earlier this month, California agricultural company Fresh Harvest Inc., agreed to pay $1 million in back wages to farmworkers under a settlement agreement. Fresh Harvest, which is a component of the Scaroni Family of Companies, bills itself as one of the largest H-2A employers in the Western United States. The agreement was the result of a lawsuit filed by the United Farm Workers (UFW) and California Rural Legal Assistance, Inc. (CRLA), which sought unpaid wages for workers’ uncompensated travel and waiting time, as well as damages for violations of state and federal labor law. Workers’ travel to and from work sites averaged two or more hours each day and workers additionally had various wait times beyond their control, for which they were not compensated. Workers were also retailed against after cooperating with an investigation of one of the company’s crew leaders. The settlement agreement will likely be finalized in December.

Farmworker Group Alleges Targeting by ICE Due to Activism

On November 14, worker rights’ group Migrant Justice filed a lawsuit claiming the group has been targeted by the Department of Homeland Security (DHS) in an attempt to suppress its activism. The lawsuit was brought by the ACLU of Vermont, the Center for Constitutional Rights, the National Center for Law and Economic Justice, the National Immigration Law Center and a private law firm. At least 20 members of Migrant Justice have been arrested and detained by ICE in the past five years. The lawsuit claims that these arrests were “part of a pattern of ICE expending significant resources to target, surveil and detain immigrant activists and leaders across the country in response to their protected political speech and activity.” Migrant Justice, based in Vermont, is known for its Milk with Dignity campaign and support of immigrant farmworkers.

President Trump Threatens to Shut Down Government over Border Wall Funding

In late September, Congress passed a temporary spending bill, called a continuing resolution (CR), to fund various government agencies, including the Department of Homeland Security (DHS). The current CR expires on December 7, which means that Congress must agree to an appropriations bill for FY 2019 by that date or else risk a government shutdown. The DHS bill includes funding for immigration enforcement. President Trump is insisting on $5 billion in funds for border wall construction and threatening to push for a government shutdown if that amount is not agreed to. Senate spending bills must clear 60 votes to pass, which means that any funding legislation would need some Democratic support.

Update on Farmworker Health and Safety

Farmworkers Still Working Amidst California Fires

While fires ravaged California in the past few weeks, many farmworkers were pressured to continue working among the dangerous conditions, often without protective equipment. State law requires employers to provide protective gear as well as train employees on how to use the gear effectively. However, according to local farmworker groups, only some employers complied with these obligations. Strawberry pickers in the region reported experiencing sore eyes, upset stomachs, headaches and dizziness as a result of the smoke. Approximately 36,000 farmworkers may have been exposed to the dangerous air caused by the wildfires. Many are undocumented and/or speak indigenous languages and may be hesitant to complain about safety violations for fear of retaliation.

Farmworkers and Hurricane Florence’s Aftermath

A recent Civil Eats article details the challenges faced by undocumented farmworkers during and after Hurricane Florence’s landfall in North Carolina in September. Undocumented communities’ challenges after natural disasters are compounded by the inability to access needed services, including food and shelter. The article describes relief efforts by local groups such as the Episcopal Farmworker Ministry and the Kinston Community Health Center in the aftermath of the storm.

Dairy Worker Dies in Manure Pit

Tragically, yet another dairy worker has died as a result of driving into a manure holding pit. The 22-year old farmworker in Ohio drowned after the skid steer he was driving went into the pit. As stated in this news article, working around manure storage areas has many potential dangers, which is why it is so important that workers be adequately trained to work safely in these areas and be aware of equipment hazards.

OSHA Small Farm Exemption

A recent Atlantic article delves into the impact of the small farm exemption, which prohibits Occupational Safety and Health Administration (OSHA) investigations into fatalities at farms with 10 or less non-family employees. The exemption, put into an appropriations bill over four decades ago, gives small farms immunity from the agency’s oversight. The exemption also prevents the use of federal funds for training and guidance to small farms on how to comply with safety standards and potentially prevent future accidents. Congress should stop inserting the annual appropriations rider that prohibits enforcement of OSHA standards on small farms.

Immigrant Families’ SNAP Participation Dropped in 2018

New research confirms what many health advocates feared: immigrant families’ participation in the Supplemental Nutrition Assistance Program (SNAP) declined by approximately 10% in the first half of 2018, following a decade of increased participation in the program. Given that the eligibility rules for the program remained unchanged between 2017 and 2018, researchers believe that the drop in participation is related to changes in national immigration rhetoric and policies.

As a reminder, the Trump Administration recently published a proposed “public charge” rule that could further reduce immigrants’ access to essential nutrition and health services. Comments on the proposed rule are due on December 10. For more information on how the rule could affect farmworkers, please see Farmworker Justice’s fact sheet and template comments.