Farmworker Justice Update: November 19, 2020
Biden/Harris Win 2020 Presidential Election
Joe Biden and Kamala Harris are now President-Elect and Vice President-Elect, respectively, winning the 2020 presidential election with a projected 306 electoral college votes compared to 232 for the Trump/Pence ticket. They won with a popular vote margin of more than five million votes. The Biden/Harris campaign platform and their previous legislative work suggests that farmworkers and their families may be able to look forward to improved policies and actions under the incoming administration. President-Elect Biden’s plan to “Build Back Better in Rural America” specifically identifies farmworkers as “essential” to our country. It promises to “ensure farm workers are treated with the dignity and respect they deserve, regardless of immigration status.” Specifically, he has committed to working with Congress to provide a pathway to legal status for immigrants with a history of previous agricultural work in the United States, ensure paid sick time for farmworkers, and require that labor protections–including wage-hour requirements, humane living conditions, and protections from pesticides and heat exposure–are strictly enforced. Vice President-Elect Harris has also demonstrated a commitment to advancing the rights of farmworkers. She is the lead sponsor of both the “Fairness for Farmworkers Act,” which removes farmworkers’ exclusion from overtime pay under the FLSA, and the “Asunción Valdivia Heat Illness and Fatality Prevention Act,” which would help protect the safety and wellbeing of workers exposed to dangerous heat.
Although the Biden-Harris administration will be able to take significant steps to improve the lives and working conditions of farmworkers and their families through executive and administrative actions, their legislative agenda will largely depend on the makeup of Congress. The majority in the House will remain Democratic but the Senate majority, currently Republican, will be determined on January 5 by two Georgia Senate run-off races. The two incumbent Georgia Senators are Republicans being challenged by Democrats.
During presidential transitions, Farmworker Justice prepares recommended policies and actions for the incoming Administration and collaborates with other farmworker-serving organizations to advance farmworkers’ interests. FJ and allies are advocating for a series of improvements regarding immigration, labor rights, occupational safety, health and access to health care.
Litigation Continues in Agricultural Wages Case
Earlier this fall, on behalf of United Farm Workers and United Farm Workers Foundation, Farmworker Justice and cocounsel at WilmerHale filed a lawsuit in federal district court in California challenging the Department of Agriculture’s (“USDA”) decision to terminate the Farm Labor Survey (“FLS”). 
In terminating the FLS, the USDA sought to remove an essential floor for wages paid to farmworkers on H-2A farms. Specifically, growers that bring in H-2A workers are required to pay farmworkers–both foreign and domestic–wages at least as high as the adverse effect wage rate (AEWR). The AEWR for decades has been set for each state using FLS findings on average hourly wages. Without an FLS to set the AEWRs, farmworker wages would plummet. After an emergency remote hearing, Judge Drozd issued an injunction requiring USDA to complete the 2020 FLS.
A few days after the court’s ruling, DOL issued a new rule changing the methodology used to calculate the AEWR. Under the new formula, the AEWRs would be frozen during 2021 and 2022 at the 2020 levels (based on 2019 wage surveys). This wage freeze would harm farmworkers’ because their wage rates have been increasing in recent years. After the two years, DOL would adjust the wage rates by the change in the previous year’s Employment Cost Index (ECI), which has been rising more slowly than farmworkers’ wages. The rule acknowledges that the change will cost farmworkers $1.68 billion in lost wages over the next ten years. Pointing to this new rule, USDA asked the judge to dissolve the injunction requiring the agency to carry out the 2020 FLS. Farmworker Justice has filed a response explaining why the new rule for calculating the AEWR does not negate the need for 2020 FLS data. In addition, FJ and cocounsel informed the court of the UFW’s intention to challenge the legality of the new AEWR formula.
DOL Releases Fiscal Year 2020 Data on the H-2A Program
The Department of Labor (DOL) recently released its 2020 fourth-quarter data on the H-2A program for the fiscal year, which ended September 30. The data shows that the H-2A agricultural guestworker program continues to grow. A total of 275,430 H-2A positions were certified in FY 2020, up 8% from the 257,000 positions certified in FY 2019. The states with the most H-2A workers are Florida (certifying 39,064 positions), Georgia (certifying 27,614 positions), Washington (certifying 26,832 positions), California, (certifying 25,453 positions) and North Carolina (certifying 22,052 positions). These five states currently account for more than half of all H-2A positions certified.
Washington Supreme Court Ruling Grants Overtime Pay to Farmworkers
On November 5, the Washington Supreme Court, by a vote of 5-4, issued a ruling holding that dairy workers are entitled to overtime pay under the state’s minimum wage laws. Specifically, the court held that longstanding exemption of farmworkers from the state’s overtime law violated the Washington Constitution. Farmworker Justice and labor law professor Marc Linder submitted an amicus curiae brief in support of the workers. Justice González, who authored the concurring opinion on behalf of three justices, acknowledged the racial makeup of Washington’s farm labor workforce–with 99% of Washington farmworkers identifying as Latino–and the history of racism undergirding the exclusion of farmworkers from federal and state labor protections. “Farmworkers remain some of the most impoverished and socially excluded members of our society. It is no coincidence the law continues to disfavor them. Subjected to second-class worker status, farmworkers are precisely the type of politically powerless minorities whose interests are a central concern for equal protections.” Although it is not clear whether the court’s ruling will extend to all farmworkers or will only be read to protect dairy workers, the dissenting opinion, at least, suggests that the court’s decision would apply to other farmworkers. Local advocates agree.
Report Finds H-2A and Other Visa Programs “Highly Susceptible to Fraud”
On November 13, Assistant Inspector General Elliot P. Lewis released a report identifying several shortcomings in foreign labor certification programs, including the H-2A program that brings thousands of farmworkers to the United States each year. Specifically, the report outlines several ways that growers and recruiters are able to use the program to abuse and defraud workers. Because growers are not required to provide underlying documentation proving that they have complied with recruitment regulations, many are able to skirt the law without repercussion. The report also identified ways that DOL can better use its resources to crack down unscrupulous employers and recruiters. Farmworker Justice has written extensively on the ways the H-2A program fails U.S. and foreign workers.
Federal Court Finds Trump Administration’s Attack on DACA Invalid
On November 14, a federal judge in New York held that a recent Department of Homeland Security (DHS) memo stripping away Deferred Action for Childhood Arrivals (DACA) protection was invalid because the memorandum’s author, Chad Wolf, had been unlawfully appointed to his position. The case, Batalla Vidal v. Wolf, arose shortly after the Supreme Court ruled in June that the Trump Administration’s earlier efforts to phase out the DACA program violated the law. Rather than returning the DACA program to its original form, Wolf issued a memorandum prohibiting first-time DACA applications, cutting renewal periods for current DACA recipients, and imposing stricter travel restrictions. The ruling makes clear that this second attempt to strip away protection from Dreamers was also unlawful. The ruling also certifies the plaintiffs in the case as class representatives, meaning that any protections arising from this case will cover all DACA recipients.
It is still unclear how the government will respond to the newest ruling. The National Immigration Law Center (NILC) will continue updating its website with information about the case and its implications for DACA recipients.
Migrant Justice Settles Retaliation Case with ICE
Migrant Justice–a Vermont farmworkers’ rights organization–and three individual plaintiffs have settled a 2018 lawsuit with U.S. Immigration and Customs Enforcement (ICE). The case, Migrant Justice v. Wolf, was initially brought after ICE targeted Migrant Justice leaders and members in retaliation for their organizing efforts. Under the settlement agreement, individual plaintiffs will be protected from deportation and granted deferred action. ICE will also be required to instruct its officers to end practices that violate the First Amendment. In addition, ICE must pay $100,000 to the plaintiffs. “With this settlement, we have shown that we won’t back down in the face of ICE’s abuses. They have tried to silence us by terrorizing our community and targeting our leaders, but we are here today to say that we will not be silenced,” said one plaintiff in the case, Victor Diaz.
Farmworker Health and Safety
EPA Issues Final Rule on Application Exclusion Zone (AEZ)
On October 30, EPA issued a final rule revising the Application Exclusion Zone provision of the Worker Protection Standard (WPS). The WPS regulates when and how pesticides may be applied so as to protect workers and rural communities from toxic chemicals. Although the agency claims that it issued the final rule in an attempt to “clarify and simplify” the regulations, such clarity is not apparent from the language of the rule. Instead, the changes primarily offer flexibility to growers while putting vulnerable communities in danger. For example, the rule prohibits growers from spraying pesticides if humans—including farmworkers and others—are in specific areas close to the spraying that may put them in danger. The new rule narrows this “Application Exclusion Zone” (AEZ) to those areas on the growers’ property, even when pesticides may be blown into nearby spaces. Of course, pesticides don’t become less dangerous just because they have passed over a property line.
The new rule also allows spraying to continue even if non-employees are on the growers’ property and close enough to the spraying that they might be put in danger, so long as that person is subject to an easement—a legal creation that gives a person the right to be on a piece of property. Finally, the new rule shrinks the AEZ for the spraying of certain pesticides from 100 feet to 25 feet. As EarthJustice attorney, Carrie Apfel, explained, the “rollback is a despicable attack on farmworkers and rural communities.”
Supreme Court Hears Argument in Affordable Care Act Case
The Supreme Court heard oral arguments on Tuesday in California v. Texas, the most recent challenge to the Affordable Care Act. This is not the first time the Court has considered the constitutionality of the ACA. Immediately after its passage in 2010, opponents brought a challenge claiming that Congress lacked the authority to impose an individual mandate. The Supreme Court rejected this argument in 2012, holding that the mandate was a lawfully imposed tax. In 2017, after failing to “repeal and replace” the ACA, Congress instead lowered the “tax” to zero. Opponents of the ACA then brought a new suit, claiming that this legislative action invalidated the entire Act because the mandate was no longer a tax. Although experts have questioned the merits of this argument, the question at the center of the case is whether the Act can survive even if the individual mandate is struck down. Based on the oral arguments, it seems unlikely that the Court will strike down the entire ACA, though the Court could reach any number of conclusions. A ruling is expected by June 2021.
Open Enrollment Under the Affordable Care Act is Now Open
Open enrollment for 2021 runs from November 1 to December 15. Some state marketplaces, like California and New York, have open enrollment through January 31, 2021. More information can be found at HealthCare.gov or your state’s marketplace website. To learn about ACA and health insurance resources for farmworkers, visit our website.