News Article Type: Press Room

President Trump’s announcement of a planned executive order to suspend all immigration reportedly will NOT terminate visa processing and hiring of agricultural guestworkers under the H-2A temporary foreign agricultural worker program.  In fact, the Trump Administration has issued a series of orders granting agricultural employers additional flexibility in bringing in and employing H-2A visa workers.  About 250,000 guestworkers were approved in FY 2019, about 10% of the farm labor force of roughly 2.5 million.

Read moreFarmworker Justice Statement on Trump’s Suspension of Immigration: Agricultural Guestworkers Are Exception and Are Subjected to Dangerous Risks of Exposure to COVID-19 Without Health Care

The USDA and DHS today announced that agricultural employers that have received approval to hire guestworkers under the H-2A agricultural guestworker program will have flexibility to hire guestworkers already in the country even if they ordinarily would be required to go home after their previous H-2A employer’s job ended.  The announcement also said H-2A workers, who are supposed to fill jobs that are seasonal or temporary, could stay for longer periods of time if an H-2A program employer hires them.

Read moreFarmworker Justice Statement on USDA and DHS Policy Announcement re H-2A Agricultural Guestworker Program: Flexibility for Employers and No Action to Protect Farmworkers from COVID-19 or Ensure Access to Testing or Health Care

Department of Labor Adopts Illegal Legal Interpretation Allowing Businesses to Escape Responsibility for Paying Minimum Wage by Using Subcontracting and Other Contingent-Labor Arrangements

                The U.S. Department of Labor on Sunday announced a new policy that will be published in the Federal Register as a regulation on January 16.  The policy is a misinterpretation of the Fair Labor Standards Act (FLSA), which mandates the minimum wage, overtime and child labor restrictions.  The rule will mostly likely guide the Department of Labor’s Wage and Hour Division, which enforces the FLSA.  Although the new policy is meant to inform courts about the meaning of the law, this misinterpretation of the law and court decisions should not be followed by the courts.   

                The new policy severely limits the situations in which businesses that share responsibility for employment of workers would be found to both be “employers” and therefore be deemed to be “joint employers” that are responsible for paying the minimum wage and overtime and complying with child labor restrictions.  (Farmworkers are not covered by overtime pay.)

The DOL’s policy contravenes key provisions in the FLSA through a convoluted analysis of the words in the law.  Congress in the FLSA used a broad definition of the word “employ” that the agency intentionally ignores. Congress intended to provide workers with meaningful minimum protections that could not be easily evaded and to protect law-abiding businesses from unfair competition by companies that engage in substandard labor practices. 

The DOL’s policy essentially means that it will rarely find that two businesses jointly employ workers because it adopts a harmful test that insists that to be an employer a business must be shown to control the minute details of how workers perform their work and exercise other specific actions, which will often lead to the false conclusion that only one business is the “employer.”

Joint employer status is especially important in agriculture, where many farm operators utilize farm labor contractors (FLCs) to recruit and supervise farmworkers.  The existence of joint employer liability helps to encourage farm operators to choose their FLC’s carefully, demand compliance with the law, compensate the FLC’s appropriately so that workers receive required compensation, and monitor their conduct.   Too often, when farmworkers suffer violations of their rights, a farm operator denies it is the “employer” of the workers and the farm labor contractor lacks the assets to pay a court judgment. 

“By sending the message that the Department of Labor’s enforcement will rarely find joint employer liability in common situations where wage theft occurs, the agency encourages some farm operators to ignore what happens on their farm, including substandard wages and use of underage child labor,” said Bruce Goldstein, President of Farmworker Justice, which submitted comments on the proposed rule that were quoted and dismissed by the Department of Labor in explaining its final decision.  “The rule creates an incentive for farm operators to minimize their labor-related costs by paying farm labor contractors at levels that are inadequate to provide farmworkers with the minimum wage and ignoring the use of child labor on the farm,” he added. 

                Farmworker Justice is a national advocacy and litigation organization for farmworkers, and has a long history of seeking enforcement of the joint employer liability concept due to rampant wage theft and widespread use of farm labor contractors who are used to evade the law.  Information about the Joint Employer issue is available on our website.  https://www.farmworkerjustice.org/resources/immigration-labor/labor-rights-farmworkers/joint-employer-standard

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Read moreFarmworker Justice Statement on the U.S. Department of Labor’s New “Joint Employer” Interpretation under the Fair Labor Standards Act

FOR IMMEDIATE RELEASE                                            Farmworker Justice, Washington, D.C.

August 16, 2019

CONTACT

Bruce Goldstein, Farmworker Justice 202-800-2521 bgoldstein@farmworkerjustice.org

National Immigration Law Center: Hayley Burgess, 202-384-1279, media@nilc.org

Western Center on Law & Poverty: Courtney McKinney, 214-395-2755, cmckinney@wclp.org

Asian Americans Advancing Justice – Los Angeles: Alison Vu, avu@advancingjustice-la.org

Federal Lawsuit Filed to Overturn Trump “Public Charge” Immigration Regulation

Low-Wage Agricultural Workers and Family Members Will Be Among the Victims

SAN FRANCISCO — Organizations serving immigrant communities and advocates for racial equity, health, children, farmworkers, and working families today filed suit to block implementation of the Trump administration’s “public charge” regulation, which threatens millions of immigrant families — disproportionally families of color.

Farmworker Justice of Washington, D.C. is a plaintiff in the lawsuit, which is entitled La Clínica de la Raza et al. v. Trump et al., filed in the U.S. District Court for the Northern District of California.  The lawsuit asks the court to declare the regulation issued by the U.S. Department of Homeland Security (DHS) unlawful and unconstitutional. DHS finalized the regulation on August 14, 2019.

“Farmworkers and other low-wage immigrant workers will be disproportionately harmed by this rule. Farmworkers perform honorable, difficult work but their wages are among the lowest of any occupation and their poverty rates are substantially higher than the national average,” said Bruce Goldstein, President of Farmworker Justice.  “This cruel policy change will unfairly deny hard-working farmworkers and their family members the opportunity to become immigrants and citizens,” he said.  He added, “In addition, the rule’s discrimination against people who use public programs for which they are eligible based on their low-wages will cause them to avoid such programs, harming their families’ health and nutrition.”

In addition to Farmworker Justice, the suit was brought by La Clínica de la Raza, African Communities Together, the California Primary Care Association, the Central American Resource Center, the Council on American Islamic Relations – California, the Korean Resource Center, the Legal Aid Society of San Mateo County, and Maternal and Child Health Access.

The plaintiffs are represented by the National Immigration Law Center, Asian Americans Advancing Justice – Los Angeles, the National Health Law Program and the Western Center on Law and Poverty.

Plaintiffs assert that the regulation violates the Administrative Procedure Act because it is contrary to law and arbitrary and capricious. The complaint also argues that the regulation is invalid because the official who approved its publication, Kenneth T. Cuccinelli, was appointed in violation of the Constitution’s Appointments Clause and the Federal Vacancies Reform Act.

In addition, the complaint argues that the regulation was motivated by racial bias against nonwhite immigrants and asks the court to strike it down as a violation of Equal Protection under the Fifth Amendment of the U.S. Constitution.   The large majority of agricultural workers in the United States are Latino and the large majority are immigrants, mostly from Mexico.  As indicators of a motivating racial animus, the complaint cites the administration’s acknowledgement that the policy will have a disparate impact on families of color, President Donald Trump’s own racist statements, and his administration’s other racially-biased policies.

“This rule change is a direct attack on communities of color and their families, and furthers this administration’s desire to make this country work primarily for the wealthy and white. Our immigration system cannot be based on the racial animosities of this administration, or whether or not people are wealthy,” said Antionette Dozier, senior attorney at the Western Center on Law and Poverty.

More than 260,000 public comments were submitted on the draft regulation last fall, the vast majority in opposition. The regulation targets programs that serve whole families — Medicaid, the Supplemental Nutrition Assistance Program, and Section 8 housing assistance — meaning its impact will extend well beyond immigrants directly affected. As a result, experts warn, the regulation will result in increases in hunger, unmet health and housing needs, and poverty. Because affected immigrants are overwhelmingly immigrants of color, the rule is also expected to widen racial disparities. Independent analysts estimate that the regulation threatens millions of people. A significant portion of those threatened by the regulation were born in the U.S., and nearly a third of those are children.

The complaint asserts that the public charge regulation threatens the missions of the plaintiff organizations and the communities they serve.

“The Trump administration has deliberately designed this policy to target families of color, which is part of its overall blueprint to change the face of what we look like as a nation and who is considered worthy of being an American. It threatens immigrants of color with exclusion and Americans of color with deprivation or family separation. And it aims to deny working-class immigrants of color the ability to thrive in the land of opportunity,” said Marielena Hincapié, executive director of the National Immigration Law Center. “We will not stand for it. We’re fighting back against this racist policy, and we’re going to win the fight to protect immigrant families.”

Today’s filing is available at https://www.nilc.org/wp-content/uploads/2019/08/Clinica-de-la-Raza-v-Trump-complaint-2019-08-16.pdf.

Read morePress Statement on Public Charge Lawsuit