Farmworker Justice Update: 1/29/2020

DOL Releases New Joint Employer Rule

On January 12, the Department of Labor (DOL) released a new final rule in the form of an interpretative regulation on joint employer liability under the Fair Labor Standards Act (FLSA). The new interpretation creates a four part test to assess whether a business should be considered a joint employer with another business. The purpose of the regulation is to narrow the circumstances under which joint employer status will be found. One of the consequences of this interpretation, if implemented, would be that where a larger business, such as a farming operation, uses a labor contractor to supervise workers, only the labor contractor would be found liable for violating child labor, minimum wage or overtime rules. This definition is a marked change from prior interpretations by the courts and by the DOL itself.

Farmworker Justice filed extensive comments on behalf of itself and other organizations opposing the proposed changes. We expect that most federal courts would not follow this interpretation when workers sue to enforce their rights and seek joint employer liability. However, the DOL will follow it in conducting its investigations and litigation under the FLSA, which will encourage some businesses to use abusive labor contractors. These changes do not affect a previous, and appropriate, joint employer interpretation issued by the DOL under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the principal federal employment law for farmworkers.

Top USDA Civil Rights Official Leaves Agency

Effective January 31, the U.S. Department of Agriculture (USDA) deputy assistant secretary for civil rights, Naomi Earp, will leave the agency. Earp has only been at the job for a year. Earp faced criticism during a House hearing where a Representative accused her of mismanaging the office intended to be a champion for the underserved. Of the 300 civil rights complaints filed by employees in fiscal year 2019, only 2 resulted in a finding of wrongdoing. Additionally, Earp had made several controversial comments relating to alleged sexual harassment within USDA. Neither the agency nor President Trump has announced a successor yet.

New Trade Deals Move Forward

China

On January 15, Trump signed phase one of a new trade deal with China. Among the new trade provisions is an agreement that China will purchase $32 billion in agricultural products over the next two years. The new deal has received criticism as it leaves two thirds of the tariffs on Chinese goods coming into the United States in place, which some describe as a hidden tax. Similarly, the phase 1 deal did not reduce the tariffs on U.S. agricultural goods going into China, which President Trump claims will come off in the Phase 2 deal. There is also the caveat that China will buy the goods “based on market conditions.” This worries some farmers who do not believe the market will change much under the new deal. USDA Secretary Sonny Perdue stated that the new China purchases would alleviate farmer’s current need for aid from the U.S. government to stay afloat.

USMCA

On January 16, the Senate passed the U.S.-Mexico-Canada Agreement (USMCA), which will replace the previous North American Free Trade Agreement (NAFTA). Some of the agreement’s new provisions expand the dairy market in Canada, and others demand that Mexico expand labor protections for workers, including migrants and women. Opponents of the bill, including some labor and environmental groups, think that the new deal does not go far enough in protecting workers and the environment. The bill passed through Congress with bipartisan support, with a vote of 89-10 in the Senate and 385-41 in the House. Trump has not signed the trade deal as of the writing of this update.

Temporary Restraining Order Placed on Part of New York Farmworker Rights Law

On December 30, 2019, a coalition of New York dairy and vegetable farmers filed a lawsuit against implementation of the “Farmworkers Fair Labor Practices Act,” a new state agricultural labor law that took effect on January 1. The new law gives New York farmworkers the right to unionize, be paid overtime pay (after 60 hours in a week) and take at least one day off per week for the first time in the state’s history. Gov. Cuomo signed the historic legislation in July 2019. The groups behind the lawsuit are not challenging the provisions that allow for overtime and at least one day off per week. Rather, they want clarification on the collective bargaining piece of the legislation, which they claim runs counter to federal law. The judge temporarily blocked one aspect of the collective bargaining law. As a result, for the time being, the right to unionize will not apply to supervisory personnel. There will be additional court proceedings in February.

New Colorado Overtime Rules Exclude Farmworkers

On January 22, the Colorado Department of Labor and Employment released new overtime rules extending overtime pay to additional occupations. However, little will change for farmworkers as agricultural employees are still exempt under both federal law and the new state rules. One positive change is that farmworkers now have a required 10 minute break for every 4 hours worked. The agency said it chose not to expand overtime to farmworkers because they are exempt under federal law.

Update on Farmworker Health and Safety

Public Charge Litigation Update

On January 27, the U.S. Supreme Court overturned a nationwide injunction by the 2nd Circuit Court of Appeals that had prevented the Trump administration from implementing its public charge rule. The Supreme Court’s 5-4 ruling means the rule could now go into effect although it remains unclear when the Administration will begin implementing it. Prior to the Supreme Court ruling, on January 8, the 2nd Circuit Court of Appeals in New York had denied the Administration's motion to stay (or temporarily lift) the New York District Court's nationwide injunction. FJ will continue to provide information as this process unfolds. The Protecting Immigrant Families (PIF) campaign has resources and messaging for community members around public charge.

Under the Immigration and Nationality Act, the government may deny an application for immigration status to a person who “is likely at any time to become a public charge.” The new rule drastically changes the factors used to determine whether a person is “likely” to become a public charge in the future. It also changes the definition of “public charge.” The consequences are that many immigrants who contribute to our economy and support their families will be deemed unfairly to be a “public charge” and denied immigration status. It is important, however, to understand what is in the rule and what is NOT in the rule, as described in our fact sheet.

ACA Open Enrollment Period for 2020 Ends

Open enrollment for healthcare.gov, the federal health insurance marketplace under the Affordable Care Act (ACA), ended in December 2019. According to the Centers for Medicare and Medicaid Services (CMS), approximately 8.3 million individuals selected or were automatically re-enrolled in health insurance plans. This total is slightly less than last year; however, there were more new enrollments than last year, despite cuts to outreach and in-person assistance/navigator programs and the repeal of the individual mandate. Data is not yet available for the state-based marketplaces (including California, Colorado, Connecticut, Massachusetts, New York, and Washington, among others). Final numbers should be available in February.

Fifth Circuit Rules Against the ACA

On December 18, the Fifth Circuit ruled part of the Affordable Care Act unconstitutional and remanded the rest to the district court. The individual mandate was ruled unconstitutional and will no longer apply unless the Supreme Court overturns the ruling. However, the Fifth Circuit did not rule on whether the rest of the ACA withstands a constitutional test. Pro-ACA organizations consisting of the House of Representatives and a coalition of several states filed an appeal with the Supreme Court for an expedited hearing, but that request was denied on January 21. That decision means that the appeal will be heard in October 2020 at the earliest, pushing the final ruling past the upcoming November 2020 election.

States Debating Chlorpyrifos Ban

On January 20, a bill that would ban most uses of chlorpyrifos was introduced in the Washington legislature. Mint, onion and sweet corn growers would still be able to use the chemical under the bill. Other farmers could apply for an exemption, too, but they would have to alert neighbors prior to spraying and warn that exposure to chlorpyrifos could harm young children and fetuses. Sen. Christine Rolfes introduced the bill, SB 6518. The ban would begin January 1, 2021 for products with chlorpyrifos as the active ingredient. However, users have until December 31, 2025 to ask permission from the state to use chlorpyrifos with restrictions.

In Oregon, a pesticide working group met on January 23. During the meeting, a proposed bill was discussed for banning chlorpyrifos. The Oregon legislature has attempted to ban the chlorpyrifos in the past to no avail. The bill would work to ban the sale of chlorpyrifos over the next two years. PCUN and Oregon AFL-CIO are leading this bill. HB 4109 already has several sponsors and cosponsors, but has not been formally introduced.

The Maryland legislature will also consider a ban. The proposal has been introduced in past legislative sessions, and groups are hopeful that this year the legislature will take action. S.B. 300 and H.B. 229 will be heard in committee in February. Farmworker Justice has been assisting activists in Maryland and other states in this effort. Farmworker Justice is also a plaintiff in federal litigation against the EPA for its refusal to ban chlorpyrifos.