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!