Farmworker Justice Update: 04/24/19

Farmworker Justice Update: 04/24/19

2017 Census of Agriculture Results

The U.S. Department of Agriculture recently released the results of its 2017 Census of Agriculture. The Census is conducted every five years and is meant to capture agricultural trends. With regard to farmer demographics, the average age of farm producers has continued to rise. Over 95% of farm producers are white whereas only about 3% are Hispanic, an interesting piece of data when you contrast it with the National Agricultural Workers Survey (NAWS)’ finding that more than 80% of farmworkers are Hispanic.

Another trend identified in the survey was a decline in the number of mid-size farms, while the number of both very small farms (sales of $2,500 or less) and very large farms (sales of $5 million or more) increased. There are 2 million farms in the U.S., comprising 900 million acres of land. More than two thirds of all agricultural production was sold by fewer than 4% of U.S. farms. The top ten agricultural producing states were California, Iowa, Texas, Nebraska, Kansas, Minnesota, Illinois, North Carolina, Wisconsin and Indiana. The value of agricultural products sold from farms nationwide was $389 billion. The 2017 market value of all agricultural products in some of the states known for labor-intensive products such as fruits, vegetables, horticulture and dairies include: California $45.2 billion; North Carolina $12.9 billion; Wisconsin $11.4 billion; Washington $9.6 billion; Florida $7.4 billion and Arizona $3.85 billion.

New York Farmworkers Fair Labor Practices Act

Celebrity chef Jose Andres and Broadway star Lin-Manuel Miranda, along with Hispanic Federation President Jose Calderon, recently penned an op-ed in support of New York’s proposed Farmworkers Fair Labor Practices Act. The bill has passed the New York State Assembly in past years but has not passed the Senate. As noted in the op-ed, the 2019 session must be different. The bill would remedy farmworkers’ exclusion from overtime pay, unemployment insurance, workers’ compensation and the right to bargain collectively. FJ President Bruce Goldstein will be testifying in favor of the bill in one of several legislative hearings that will be held across New York in the coming weeks. You can find more information on the bill, and how to support it, here.

Washington State House Passes State H-2A Office Bill

Earlier this month, the Washington State House of Representatives passed SB 5438, a bill that would establish an office within the state employment security department specifically tasked with monitoring the H-2A program. The bill had already passed in the state Senate. Unfortunately, the bill does not contain some of the provisions hoped for by farmworker advocates, including a fee charged to employers who use the program. As stated by Rosalinda Guillen, Executive Director of Community to Community Development, which has been advocating for the legislation: “this is not the original bill we wanted, but it is still a viable process that will help us fight for justice for farmworkers.” Farmworker Justice has been working with groups in the state to address the failure of the U.S. Department of Labor and the state agency to carry out their obligations under the H-2A program, including issuing determinations of local prevailing wage rates. The legislation arose in part because the state labor agency sought additional resources to fulfill its obligations. You can find more information on the bill here, including the bill text. The bill is awaiting signature from the Governor.

Nielsen Departure and DHS Shake-up

On April 5, President Trump announced the departure of Department of Homeland Security (DHS) Secretary Kirstjen Nielsen. As DHS Secretary, Nielsen oversaw the Administration’s family separation policy and other egregious actions. Nielsen’s departure occurred shortly after Pres. Trump withdrew the nomination of Ron Vitiello to lead the Immigration and Customs Enforcement (ICE) agency because he wanted to go in “a tougher direction,” leading to concerns that there may be a staff overhaul underway led by immigration hard-liners such as Stephen Miller. For the time being, Kevin McAleenan is serving as DHS secretary. McAleenan was previously U.S. Customs and Border Protection (CBP) commissioner.

DOL Publishes Proposed Rule on Joint Employment

On April 9, the Department of Labor (DOL) published its proposed rule on joint employer status under the Fair Labor Standards Act (FLSA). DOL is proposing to narrow the test for determining when two businesses should be considered to jointly employ a worker. The joint employment concept is especially important for farmworkers, many of whom are hired to work on farms through labor contractors. When wage theft occurs, in the past many growers denied that they were the “employer” for purposes of the minimum wage and other obligations. FJ and other advocates have advocated and litigated to demonstrate that the FLSA’s broad definition of employment relationships encompasses joint employer status in many circumstances. Secretary of Labor Acosta is attempting to reverse a long series of court cases and interpretations via regulation. The joint employer standard was among the Obama-era federal regulations the Trump administration had targeted for change. The deadline for submitting comments to the proposed rule is June 10. FJ will be drafting comments to the proposed rule highlighting its potential impact on farmworkers.

Update on Farmworker Health and Safety

Court Orders EPA to Decide On Chlorpyrifos Ban within 90 Days

On April 19, the 9th Circuit Court of Appeals ordered the Environmental Protection Agency (EPA) to decide within 90 days whether to ban chlorpyrifos, a highly toxic pesticide. A 3-judge panel of the Court had ordered the EPA to ban the chemical last year, but the EPA appealed for a hearing by the full Court. The EPA had proposed to ban chlorpyrifos in 2016 based on its own scientific findings, but in 2017 then Administrator Scott Pruitt reversed the agency’s decision and said that the EPA would study the issue until 2022. Now, the EPA must decide whether to allow continued use of the chemical in agriculture by mid-July.

OSHA Safety Enforcement Continues to Decline

A recent National Employment Law Project (NELP) report details how enforcement activity by the Occupational Safety and Health Administration (OSHA) declined in 2017 and further declined in 2018. This trend is evident by the decrease of the following types of inspections: hazards causing musculoskeletal disorders (ergonomics), heat safety, worker exposure to dangerous chemicals, and operations with combustible dust. Another factor contributing to the decrease in workplace safety enforcement is OSHA’s failure to fill vacant inspector positions in a timely manner, with the number of OSHA inspectors currently at a historic low. This decrease in safety enforcement is occurring amid an increase in the number of fatality and catastrophe investigations, suggesting workplaces are becoming increasingly more dangerous. Additionally, OSHA has drastically reduced its issuance of press releases about enforcement activities, which help to serve as deterrents to employers who might otherwise relax their safety efforts.

Health Policy Bulletin on Green Tobacco Sickness

FJ is pleased to share its Winter 2019 Health Policy Bulletin. The topic highlighted in the 2019 Health Policy Bulletin is Green Tobacco Sickness. You can go to our website to view and download the issue.