Farmworker Justice Update – 12/18/18

Public Comment Deadlines for Proposed H-2A Program Changes

As a reminder, there are various opportunities to comment in response to Federal Register notices related to the H-2A program, with deadlines next week. As mentioned in previous updates, the Department of Labor (DOL) issued notices of proposed rulemaking regarding the requirements for recruiting U.S. workers by employers seeking certification in both the H-2A and H-2B temporary guestworker visa programs. The deadline for submitting comments for both notices is now December 28 (it was previously December 10 but was extended).

DOL has also announced a proposed revision to the forms used for employer certification under the H-2A temporary agricultural worker visa program. The two forms being revised are Form ETA-9142A, which is the form employers use to apply for H-2A workers, and Form 790, which is the agricultural clearance order that is circulated to inform prospective job applicants of job terms and instructions. The deadline for submitting comments to this proposal is December 24.

Florida H-2A Labor Contractor Fined for Violation of Program Requirements

Florida H-2A labor contractor SOL Harvesting LLC was recently fined $53,428 by the Department of Labor (DOL)’s Wage and Hour Division (WHD). Among various violations of the H-2A program requirements, DOL WHD found that SOL Harvesting failed to provide employees copies of their work contracts and reimburse them for transportation and visa fees. Workers also were not provided with housing that met minimum safety and health standards. The bulk of the amount paid by the contractor constituted back wages, as DOL only assessed a civil money penalty of $2,368 for the H-2A program violations. SOL Harvesting had hired approximately 100 workers to harvest cucumbers, cabbage, kale and onions at Scott’s Farms in Mt. Dora, Florida. To our knowledge the farm operator was not penalized and the labor contractor has not been debarred from the H-2A program.

USDA Releases Report on Farm Labor Markets in the U.S. and Mexico

The U.S. Department of Agriculture (USDA)’s Economic Research Service (ERS) recently released a report entitled “Farm Labor Markets in the United States and Mexico Pose Challenges for U.S. Agriculture.” The report finds that the U.S. farm labor market is showing signs of tightening, including increases in farm wages, more widespread use of the H-2A temporary agricultural worker visa program, and a shrinking supply of farm labor from Mexico. Among the potential options for employers to respond to a tighter labor market proposed by the study are raising wages, improving benefits and working conditions, increased mechanizing of crops, switching to less labor-intensive crops and greater employment of guestworkers. The report emphasizes guestworker status as a mechanism for recruiting future farmworkers, rather than offering potential agricultural workers, or current undocumented workers, the opportunity to adjust their immigration status or have a path to U.S. citizenship.

Various Appropriations Bills Expire December 21, Government Shutdown Possible

Earlier this month, Congress passed a temporary spending bill for FY 2019, called a continuing resolution (CR), to fund various government agencies, including the Department of Homeland Security (DHS) and the Department of Agriculture (USDA), through December 21. Despite opposition from Democrats and reluctance among some Republicans to press the issue, President Trump is insisting on $5 billion in funds for border wall construction in the DHS appropriations bill and has stated he would be “proud” to shut down the government if that amount is not agreed to. A government shutdown could lead to many federal employees being furloughed, including at DHS, USDA, the Department of Justice and the State Department. As noted in previous FJ updates, two of the proposed FY 2019 appropriations bills have troubling language regarding the H-2A temporary agricultural worker visa program. FJ has been advocating against a possible rider in the DHS appropriations bill which would expand the H-2A program to year-round industries, as well as report language in the USDA bill on the creation of an H-2A application portal.

In addition, as we reported in the last update, there are efforts to freeze wage rates in the H-2A program by keeping the Adverse Effect Wage Rate (AEWR) at the 2018 levels instead of allowing the expected 2019 rates to go into effect. These efforts are aimed at Congress and the appropriations process as well as the Administration. The 2019 hourly wages are expected to increase approximately 6% nationwide, with higher increases for some states. 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. Farmworker Justice opposes these efforts to freeze the AEWRs in the H-2A program.

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Update on Farmworker Health and Safety

FJ Issue Brief on Specialty Care for Farmworkers

Farmworker Justice recently published a new issue brief for health centers and clinicians that outlines the continuing challenges in providing specialty care to agricultural workers and their families. The brief discusses lessons learned from FJ’s “Unidos” project – a collaborative effort between FJ and two community partners: Campesinos Sin Fronteras and Vista Community Clinic – to deliver dermatological care to agricultural workers in Somerton, Arizona and Vista, California. The brief also explores opportunities for telehealth, based on a related effort with Harvard’s Center for Health Law and Policy Innovation (CHLPI) that involved workers directly in discussions about telehealth interventions. Based on lessons learned, the brief highlights recommendations for health centers to promote access to specialty care among agricultural workers and their families.

GAO Report Finds Agriculture Has Highest Rate of Child Work-Related Deaths

A recently published study by the Government Accountability Office (GAO) found that agriculture accounts for more than half of child worker deaths, with 237 fatalities between 2003 and 2016. The study was requested by Reps. Rosa DeLauro (CT) and Lucille Roybal-Allard (CA) as an update to GAO’s 2002 child labor report. In a statement on the report’s release, the Representatives noted: “This report confirms that child labor is contributing to a devastating amount of fatalities in the United States – disproportionately so in the agricultural sector. In that industry, kids are often exposed to dangerous pesticides, heavy machinery, and extreme heat, and they are being killed as a result. That is unacceptable. Our government must take these findings as a call to action […].” The federal Fair Labor Standards Act (FLSA), which regulates child labor, allows children to be employed in agricultural jobs, including in hazardous tasks, at younger ages than in other occupations. Rep. Roybal-Allard has been a leader in efforts to end the discrimination in the law regarding child labor on industrialized farms. You can find the full GAO report, entitled “Working Children: Federal Injury Data and Compliance Strategies Could Be Strengthened,” here.

Congress Passes Farm Bill, No PRIA Language Included

Last week, both chambers of Congress passed the Farm Bill, which is expected to be signed into law by the President later this week. Originally, the House and Senate versions of the bill were very different, particularly with regard to provisions on nutrition and environmental protection programs. The final bill did not include controversial cuts to the Supplemental Nutrition Assistance Program (SNAP) that were in the original House bill and preserved many important environmental protection programs.

The final Farm Bill did not include language regarding the Pesticide Registration Improvement Act (PRIA). Earlier this year, the Senate passed a standalone version of PRIA conserving key provisions of two rules protecting farmworkers from pesticide exposure – the Worker Protection Standard (WPS) and Certification of Pesticide Applicators (CPA) rule. FJ, along with other farmworker and environmental advocates, is calling on the House to pass this version of PRIA before the end of the legislative term.

Judge Issues Ruling against ACA in Texas v. United States

On December 14, a federal judge in Texas ruled the Affordable Care Act (ACA) unconstitutional after the elimination of the tax penalty in the 2017 tax bill. In his ruling, Judge Reed O'Connor wrote that the individual mandate could not be severed from the rest of the ACA, rendering the law unconstitutional. The lawsuit was led by Texas and 19 other states. California, along with 16 other states and Washington, DC, intervened to defend the ACA in court after the Trump Administration declined to defend key provisions of the law. Attorney General Xavier Becerra of California said that they will challenge the ruling. If the Judge's decision stands, an estimated 17 million Americans could lose their health insurance, including those who gained coverage under Medicaid expansion. The ACA’s pre-existing conditions protections, along with other consumer protections in the law, would also no longer exist.

The ACA remains in effect as the appeals process moves forward. While open enrollment for insurance plans on healthcare.gov ended on December 15, enrollment in some states, including California and New York, continues. A Kaiser Family Foundation health poll conducted in November found that 61% of surveyed consumers did not know the deadline for enrollment. While final enrollment numbers are not yet available, so far, enrollment has declined compared to last year.

New Guidance for Section 1332 Waivers

The Trump Administration released new guidance for Section 1332 waivers that will provide states with flexibility that could ultimately weaken certain ACA provisions. Section 1332 innovation waivers, issued by the Centers for Medicare & Medicaid Services (CMS), allow states to experiment with strategies to provide residents with health coverage. Guidance released in 2015 provided a strict interpretation of statutory guardrails that will affect consumers. The new guidance, published in October 2018, establishes less restrictive standards such as expanded definitions of coverage to include short-term plans and encouraging states to use private exchanges to offer subsidies for non-ACA-compliant plans. More information about this guidance can be found on the Kaiser Family Foundation website. The new guidance is currently open for public comment until December 24. If you are interested in learning more, you can read this analysis by Families USA.

Over 200,000 Comments Submitted on Public Charge Proposal

Thank you to everyone who shared and submitted comments opposing the Administration's proposed changes to public charge. According to regulations.gov, over 216,000 comments were submitted and we expect that number to grow. FJ will continue to provide any relevant information on public charge and farmworkers. Visit the Protecting Immigrant Families website to learn more about the campaign, led by NILC and CLASP, and future advocacy efforts.

Best Wishes for a Healthy and Happy New Year!