Washington, DC – Farmworker Justice applauds President Obama for taking action to address our broken immigration system. Farmworker Justice has been helping farmworker organizations advocate for a more just immigration system because immigration policy has profound impacts on farmworkers, their families and their communities. The President’s administrative relief for certain undocumented immigrants will help several hundred thousand farmworker families. It also represents a step toward desperately-needed, comprehensive reform of our immigration system that Congress should enact.
“We commend President Obama for providing temporary protection against deportation and work authorization for undocumented immigrants who have strong ties to our communities. Several hundred thousand farmworkers who labor on our farms and ranches could be eligible for this administrative relief. It is sensible and within the President’s authority. With protection against the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.
“Even as we celebrate with those who will be eligible for relief, we are disappointed at the limits of the program. The eligibility criteria will deny administrative relief to many deserving farmworkers and their family members, including many long-time farmworkers who do not have U.S. citizen children.” said Bruce Goldstein, President of Farmworker Justice.
Goldstein concluded: “Immigrant farmworkers and other aspiring Americans deserve to be treated with respect and should be given the opportunity to earn immigration status and citizenship. Demands by some employer groups for exploitative guestworker programs should be rejected. Congress should pass immigration legislation that remains true to our history as a nation of immigrants.”
There are remarkably few data sets about the demographic and economic characteristics of farmworkers. Among the few studies that do exist, many have significant shortcomings. One of the better sources for over 20 years has been the National Agricultural Workers Survey (NAWS), commissioned by the U.S. Department of Labor (DOL). A random sample of farmworkers is interviewed regarding their families, their jobs, immigration status, and health. There are additional categories that vary between surveys. In the past, the DOL published several helpful reports based on the NAWS data.
Unfortunately, DOL has not published a report in many years and until recently it even stopped releasing the data to the public. Farmworker Justice requested and obtained DOL’s release of the public data from the 2011-2012 surveys. The raw data is available at http://www.doleta.gov/agworker/naws.cfm.
Our staff examined the survey data to provide a basic economic and demographic portrait of farmworkers, including data related to some of the specific policy issues in which we work. We have not conducted a complete analysis of all the data. The downloadable memorandum summarizes some of the major findings drawn from the NAWS to help inform the public, policymakers, and organizations that serve farmworkers.
Updated statistics in memo include:
Total population of farmworkers
Percentage of migrant workers
Gender and Age breakdowns
Ethnicity and Language breakdowns
The simple family farmer in the folk song “Old McDonald’s Farm” tended alone to his animals; he didn’t hire any farmworkers. Much has changed since the era of Old McDonald, yet today’s farming corporations often claim they don’t “employ” any of the workers on their farms or ranches.
Similarly, the McDonald’s Corporation, which started in a single store in 1948, claims it doesn’t employ any of the workers in its franchised restaurants. By denying employer status companies seek to avoid responsibility for ensuring that workers receive the minimum wage, Social Security coverage and other worker benefits and protections, and for negotiating with unions.
Today about 2.5 million people labor on farms and ranches in the United States. They cultivate and harvest fruits, vegetables and other crops and they raise and care for dairy cows, chickens, sheep and other livestock. Most of them work on larger farms that use from several dozen to a few thousand farmworkers each year. A large percentage of these farmworkers are recruited, hired and employed through farm labor contractors, “crewleaders,” labor leasing firms or other intermediaries. The farm operator often contends that it does not “employ” any farmworkers. Rather, it claims that the labor contractor is the sole “employer” and therefore is solely responsible for complying with the minimum wage, workers’ compensation, Social Security contributions and immigration laws.
About 1.5 million people work at tens of thousands of McDonald’s fast food franchises around the world, whom McDonald’s claims that it does not employ. It contends that the franchisee is the only employer and is solely responsible for setting job terms and complying with labor and immigration laws.
These efforts to escape status and responsibility as an employer have dire consequences for many workers. The farm operators and McDonald’s possess economic power to dictate how the farm labor contractors operate and how the McDonald’s franchisees carry out their functions. They take advantage of that power for their own benefit, leaving few resources for the worker to gain from the labor contractor or franchisee.
Farmworkers often do not receive the promised, or even legally-required, job terms from their labor contractor. If they dare to sue the labor contractor, most have a hard time collecting what is owed. With a majority of the farm labor force lacking authorized immigration status, few farmworkers feel protected to file lawsuits or join a labor union.
The McDonald’s Corporation’s success is built largely on its ability to control the consistency of the customer experience at its company-owned and franchised restaurants throughout the world. For workers who wish to reform the way they are treated, many franchise owners will not and cannot adopt major changes unless McDonald’s revises its approach.
One of the solutions is to reject the companies’ claims that they are not “employers,” instead making the farm operator and McDonald’s “joint employers.”
Farmworkers have sued growers and their labor contractors as joint employers with some success, and fast food workers are also now making efforts to hold McDonald’s responsible as an employer of the workers in its franchised restaurants in the U.S. Recently, the chief attorney at the National Labor Relations Board announced plans to bring a case to hold McDonald’s responsible as an employer under the National Labor Relations Act. The NLRA (which excludes agricultural workers and employers) protects most workers’ right to organize free from retaliation and requires employers to bargain collectively in good faith with certified labor unions.
The response from business has been predictably fierce. Both McDonald’s and farm operators want to exercise the right to control their franchises and labor contractors, respectively, to assure their profit, which has substantial consequences for the people who actually perform the work.
Long ago, Old McDonald’s Farm stopped being the predominant model for agriculture, and McDonald’s ceased to be an owner-operated hamburger joint. The courts should make clear that fast food chains and farm operators are jointly responsible as employers of the workers who labor in restaurants and farms.
Goldstein is president of Farmworker Justice, a non-profit, nonpartisan organization in Washington, D.C. that works to improve living and working conditions for migrant and seasonal farmworkers.
By Bruce Goldstein
As the 113th Congress comes to an end, so does the closest chance that we have had to passing comprehensive immigration reform in over a decade. The prospects for immigration reform that includes a path to citizenship in the incoming 114th Congress are dim. On the bright side, President Obama’s executive actions on immigration will be implemented in 2015, including expanded DACA and the new deferred action for parents program (DAPA), which could grant deportation relief for up to 5 million people. US Citizenship and Immigration Services is expected to begin accepting applications for expanded DACA in February and DAPA in May 2015.
President Obama’s executive action on immigration is likely to face challenges in the upcoming Congress; however, any efforts to block the President’s immigrations actions are likely to be largely symbolic because Congress lacks the vote to override an expected Presidential veto. In the last couple of weeks, Congress passed and the President signed the omnibus appropriations bill which funds all government agencies through FY 2015, except for the Department of Homeland Security (DHS). DHS was separately funded until February, when the Department’s budget will be reconsidered. House Republican leadership chose to only fund DHS for two months to give them another opportunity to block the President’s immigration executive action.
In the Senate, Senator Rand Paul (R-KY) filed a bill in an attempt to prevent the President from implementing his deferred action programs for undocumented immigrants. The “The Preventing Executive Overreach on Immigration Act,” is the companion legislation to Rep. Yoho’s (R-FL) bill, H.R. 5759, with the same title, which passed the House two weeks ago. Paul’s bill would prevent the Administration from implementing the DAPA program (the program which will allow parents of US citizens and lawful permanent residents who have been living in the US since January 1, 2010 to apply for deferred action and work authorization). The bill would also prevent the Administration from processing any new DACA applications, effectively terminating the program.
The Senate Judiciary Committee also held a hearing titled, “Keeping Families Together: The President’s Executive Action on Immigration and The Need to Pass Comprehensive Reform.” Prior to the hearing, UFW member Raul Esparza de la Paz participated in a press conference with Senators and other impacted community members. De la Paz said that he has one adult child who has already benefited from DACA and that he and his wife and 2 of his adult children will now be able to benefit from deferred action, removing the fear of immigration enforcement that they currently live with. De la Paz urged Congress to support the executive action on immigration and work to pass comprehensive immigration reform.
In addition to challenges from Congress, President Obama’s immigration actions are facing legal challenges from the courts. On Tuesday, in an overreach of his authority, a federal judge in Pennsylvania took it upon himself to declare Obama’s executive action on immigration unconstitutional in a court opinion that provided no basis for him to issue such a decision. The judge, Arthur Schwab, did not order the Administration to stop implementing the executive action and his ruling has no legal effect on it. The decision has been criticized because the constitutionality of the case was not at issue: neither party had argued that the President’s actions are unconstitutional nor had they briefed the court on the issue. Ilya Somin, a law professor at George Mason University writes in the Washington Post that the court opinion’s discussion of the executive action was brief and poorly reasoned. The Huffington Post reports that Judge Schwab has a checkered past. He has been removed from two cases by the 3rd Circuit Court of Appeals, in 2008 and 2012, a move that is rare and considered to be a disciplinary action.
There are also two pending constitutional challenges to the President’s administrative action. As mentioned in a previous update, several states have sued the President; the total count is now up to 24 states. The notorious Sheriff Joe Arpaio in Arizona has also requested a federal court to declare the President’s administrative relief programs unconstitutional and issue an order preventing the President from implementing it. The Department of Justice has asked the court to dismiss the Arpaio case. As we’ve said before, the President’s deferred action programs are firmly rooted in his prosecutorial discretion authority and many legal scholars believe the programs are constitutional. Nonetheless, we will be watching these cases closely and will keep you informed on developments.
Recent polls indicate that the majority of voters want Congress to act to fix our broken immigration system, rather than prevent President Obama’s executive action. Only time will tell whether Congress will listen. Unfortunately, statements by Congressional leaders indicate that Congress may move forward on a guestworker and enforcement-only strategy, doing nothing for the 11 million undocumented immigrants in the US. In the new Congress, Farmworker Justice will continue to advocate for immigration reform that treats farmworker communities and other undocumented immigrants humanely and in a way that comports with our values as a nation of immigrants. We will also be preparing to help implement DAPA in farmworker communities.
On November 20th, 2014 President Obama announced his plans for executive action on immigration. We applaud the President’s action, which includes a deferred action program that provides relief from deportation and work authorization for millions of undocumented individuals, including hundreds of thousands of farmworkers and their family members.
Immigration is a critically important issue for farmworkers. Learn about current legislation proposals impacting farmworkers.
Learn about the history of guestworker programs, H-2A program for temporary agricultural work, and the H-2B visa program.