Farmworker Justice Update: May 21, 2021
Farmworker Justice Testifies on Need for Immigration Reform
Farmworker Justice President Bruce Goldstein testified in front of the Senate Judiciary Committee’s Subcommittee on Immigration, Citizenship, and Border Security on May 12, 2021. The hearing, “The Essential Role of Immigrant Workers in America,” was convened by Subcommittee Chair Alex Padilla (D-CA). It highlighted the invaluable contributions of immigrant essential workers throughout the pandemic. Bruce’s testimonyemphasized farmworkers’ low wages, limited access to health care, and denial of equal protection under employment law, as well as other challenges they and their families have experienced during the pandemic. He urged Senators to pass legislation granting undocumented farmworkers and their family members a path to citizenship. Farmworker Justice support pending immigration reform legislation, including the Citizenship for Essential Workers Act (S.747), the Farm Workforce Modernization Act (H.R.1603), and the U.S. Citizenship Act of 2021 (S.348). Each bill would recognize the vital contributions of undocumented immigrants, including farmworkers, by creating a pathway to citizenship.
Along with Bruce Goldstein, witnesses called by Senator Padillawere Rose Tilus, a Rhode Island healthcare worker and TPS holder from Haiti, and Dr. Tom Wong, Associate Professor and Director of the U.S. Immigration Policy Center at the University of California, San Diego. Ranking Member Senator John Cornyn (R-TX) called two witnesses: Ronald Vitiello, the former acting director of U.S. Immigration and Customs Enforcement; and Dr. Douglas Holtz-Eakin, President of the American Action Forum.
Senator Dick Durbin (D-IL), the Chair of the Judiciary Committee, who attended and spoke at the hearing, has been convening a bipartisan group of senators to seek support for passing immigration reform legislation.
Court Orders Wage Adjustments in Lawsuit Against DOL
In another victory in FJ’s litigation against the Department of Labor (DOL), Judge Drozd of the Eastern District of California ruled that DOL must order employers to compensate workers who were paid unlawfully low wages. The ruling arises from a case that FJ is arguing on behalf of United Farm Workers and the United Farm Worker Foundation challenging the DOL’s attempt in 2020 to change its methodology for calculating the Adverse Effect Wage Rate (AEWR). The AEWR is a key wage floor protecting the pay of workers on farms that hire H-2A visaworkers. Late last year, Judge Drozd held that the DOL’s new methodology for calculating the AEWR was in violation of the law and ordered the DOL to recalculate the 2021 AEWR in line with its previous practices. The new calculations resulted in an increased AEWR in every state in the country.
Although a major victory for farmworkers, last year’s ruling did not address whether backpay was due to workers who were paid the unlawfully low wages before DOL recalculated the AEWR in accordance with the court’s ruling. Had DOL calculated the appropriate 2021 AEWR from the beginning, workers would have been paid the higher 2021 wages starting on January 1, 2021. Because of the delay, they were underpaid from January 1, 2021 through February 23, 2021, when the 2021 AEWRs were published. Judge Drozd’s May 13, 2021 ruling ordered DOL to require employers to pay back workers the difference between the wages they received and the applicable 2021 AEWR to which they were retroactively entitled. For some workers, this may amount to hundreds of dollars in wage adjustments; collectively it amounts to several million dollars.
Representative Grijalva Reintroduces Bill Guaranteeing Overtime Protections for Agricultural Workers
On May 13, 2021, Representative Grijalva (D-AZ) and 54 cosponsors reintroduced the Fairness for Farm Workers Act (H.R. 3194). The legislation would remedy the decades-long exclusions in the Fair Labor Standards Act of 1938 that deny agricultural workers overtime pay, and in some cases, a minimum wage. FJ has long advocated for an end to these exclusions, which originated in demands made by Southern legislators at a time when most agricultural workers were African Americans and growers hoped to maintain a low-paid, exploitable labor force. Today, when most agricultural workers are Latino/a, the exclusions continue to disproportionately affect workers of color. A hearing in front of the House Education and Labor Committee’s Subcommittee on Workforce Protections, “From Excluded to Essential: Tracing the Racist Exclusions of Farmworkers, Domestic Workers, and Tipped Workers from the Fair Labor Standards Act,” highlighted this history and the ongoing harm to essential workers. United Farm Workers President Teresa Romero testified.
Governor Inslee Signs Law Granting Overtime to Washington Farmworkers
On May 11, 2021, Washington Governor Jay Inslee signed the Tomás Villanueva Overtime Protection Bill (SB 5172), granting a right to overtime pay to Washington farmworkers. The legislation comes after the Washington state Supreme Court ruled last year that the state’s exclusion of dairy workers from overtime pay guarantees was unconstitutional. Farmworker Justice submitted an amicus curiae brief in that case. The new law, named after the former leader of the United Farm Workers of Washington state, extends these overtime protections to all agricultural workers in the state. This makes Washington one of only a few states that grants overtime pay protection to agricultural workers: California has been phasing in full overtime pay rights for farmworkers, while a few other states have partial overtime coverage for farmworkers. For more information, visit FJ’s interactive map on state employment laws. FJ urges all other states to extend overtime guarantees to agricultural workers.
DOL Withdraws Trump-Era Independent Contractor Rule
On May 5, 2021, the Department of Labor (DOL) withdrew a Trump-era rule that would have broadened the definition of “independent contractor” within the Fair Labor Standards Act, thereby excluding countless workers from the act’s labor protections for employees. In explaining its reasoning, DOL repeatedly quoted the comment submitted by Farmworker Justice in support of withdrawal of the rule.
Mexico Submits Complaint Under USMCA
On May 12, 2021, Mexico submitted a complaint to the United States under the U.S.-Mexico-Canada Agreement (USMCA) about the insufficient labor laws and protections for agricultural workers in the United States. The complaint highlights that U.S. labor laws exclude farmworkers from collective bargaining protections, overtime pay, and sometimes minimum wage guarantees. It also notes the insufficient health and safety protections for agricultural workers, including the need for a heat stress standard and stronger COVID-19 requirements.
Thea Lee To Lead the Bureau of International Labor Affairs
President Biden has announced that he is appointing Thea Lee as the head of the Bureau of International Labor Affairs, an agency within the Department of Labor that oversees the enforcement of the U.S.-Mexico-Canada Agreement (USMCA) and works to improve working conditions and address workplace exploitation. Ms. Lee previously served as the deputy chief of staff at the AFL-CIO and then as the president of the Economic Policy Institute (EPI). She has a long track record of advancing the rights of workers.
President Biden Restores Focus on Access to Justice
A May 18, 2021 presidential memorandum, Restoring the Department of Justice’s Access-to-Justice Function and Reinvigorating the White House Legal Aid Interagency Roundtable, directs administrative agencies to place a renewed focus on access to justice. Specifically, the memorandum orders the Attorney General to submit a report describing the Department of Justice (DOJ) plan to expand access-to-justice initiatives. The memorandum also reconvenes the White House Legal Aid Interagency Roundtable (LAIR), which had been initially gathered under the Obama administration. LAIR will include representatives from several agencies and will spend the first year focusing on how COVID-19 has affected individuals’ access to justice within the criminal and civil legal system.
DHS Secretary Limits Immigration Enforcement Near Courthouses
Secretary of Homeland Security Alejandro Mayorkas issued new guidance in April directing Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to limit civil immigration enforcement near courthouses. This announcement will help ensure that immigrants can safely access our legal system without the fear of arrest and deportation.
FCC Announces Plan to Increase Broadband Access
The Federal Communications Commission (FCC) has established a temporary Emergency Broadband Benefit to help low-income households access broadband internet during the COVID-19 pandemic. The program provides a $50 per month discount on broadband services; a $75 per month discount on broadband services for households on Tribal lands; and a $100 discount for laptops, desktop computers, or tablets. These discounts are made available to households that meet one of the qualifying criteria outlined by the FCC. However, a discounted rate does not necessarily lead to the installation of the infrastructure needed to provide broadband service.
As Farmworker Justice and our partners have noted, farmworkers often lack access to reliable internet, which can worsen their isolation in rural areas. Without internet access, it is difficult for farmworkers to find or receive vital information about their labor or immigration rights, gain access to healthcare, or support their children participating in online schooling.
FARMWORKER HEALTH AND SAFETY
New Reports Identify Challenges for Farmworker Health and Safety
The Vermont Law School, Center for Agriculture and Food Systems, and Johns Hopkins Center for a Livable Future have published two comprehensive reports on farmworker health. The first, “Essentially Unprotected,” focuses on laws and policies addressing pesticide and heat illness. It includes policy recommendations at the federal and state level. The second report, “Essential and In Crisis,” identifies the various public health threats that endanger farmworker health and safety. Together, the two reports are a valuable contribution to the literature on farmworker health and safety. Farmworker Justice provided input to the authors.
Ninth Circuit Orders EPA to Act on Chlorpyrifos
The Ninth Circuit has ruled that the Environmental Protection Agency (EPA) must take legally-sufficient action to address the highly toxic organophosphate pesticide chlorpyrifos. Chlorpyrifos has been linked to brain damage, reduced IQ, diminished memory, and increased attention deficit disorders. Although it has long been banned for home use, the EPA had stalled on banning its use in agriculture, even as the Agency’s own risk assessment found that there was no safe use of the pesticide.
On April 29, 2021, in response to a lawsuit brought by EarthJustice on behalf of Farmworker Justice and several other organizations, the Ninth Circuit ordered the EPA to either revoke all tolerances for the pesticide or issue a mandate modifying the tolerances. The court gave the agency 60 days to comply, meaning chlorpyrifos should be banned by this summer.
New York Passes Heroes Act
On May 5, 2021, New York Governor Andrew Cuomo signed the New York Heroes Act into the law. The legislation directs the New York commissioner of labor and the New York Department of Health to draft model workplace standards to prevent airborne infections. These plans will be tailored to specific industries. Private employers must then adopt the model plans or create their own enhanced standards in consultation with workers. The law also includes prohibitions against retaliation and discrimination. This is an important step in protecting workers in the event of future pandemics.
CDC Issues New Guidance on COVID Accessibility
The Centers for Disease Control and Prevention (CDC) issued new guidance on vaccine accessibility. States should not require proof of citizenship or residency in order to receive the COVID-19 vaccine. Documentation requirements create additionalbarriers for farmworkers’ access to vaccines. It is essential for our collective health that vaccines are administered to as many people as possible.
Farmworker Justice Creates New Interactive Tools to Educate Farmworkers on COVID Safety
Farmworker Justice and Rural Women’s Health Project created an interactive Loteria (Bingo) games to help educate farmworker communities about COVID. The game is available for free on our website and comes with instructions, cards, and a game board. It is available in English, Spanish, Haitian Creole, Mixteco, and Mam (a Mayan language spoken in Guatemala and Chiapas, Mexico).