Farmworkers in the U.S.

Monday, 18 August 2014

Today is the last day that the EPA will accept public comments on proposed revisions to the Worker Protection Standard (WPS) that provides the regulatory minimum for occupational pesticide exposure protection. Other workers who are exposed to toxic substances are covered by stronger protections, issued by the Occupational Safety and Health Administration (OSHA). The result is that the men, women, and children who produce the nation’s food are less protected from workplace hazards than other workers.

Although the proposed changes to the WPS will not address all the challenges in the fields, they are a step in the right direction to prevent pesticide illness. If the final rule includes our recommended improvements, the results will include greater awareness by farmworkers of the risks they face and preventative measures; and fewer pesticide-related injuries, illnesses, and deaths among farmworkers and their family members.

The agricultural industry is working hard to dissuade the EPA from adopting the rules that benefit farmworkers the most. Today, Politico reported the National Association of State Departments of Agriculture submitted comments that “call on the EPA to scrap the proposed changes.”

Farmworker Justice and other farmworker advocates have provided the EPA with extensive information to justify stronger protections for farmworkers. Your voice is needed to make sure farmworker safety does not take a back seat to the interests of agribusiness and pesticide manufacturers.

Please join Farmworker Justice and urge the EPA to protect farmworkers from pesticide exposure. You have until midnight tonight to submit comments.

Visit our website to use our model comments and submit by midnight tonight!

by Jessica Felix-Romero
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Friday, 01 August 2014

Democrats and Republicans rarely find common ground in Congress these days, but apparently attacking Department of Labor’s(DOL) efforts to protect our nation’s vulnerable farmworkers is one area in which they agree. On Wednesday, the House Agriculture Subcommittee on Horticulture, Research, Biotechnology, and Foreign Agriculture held a hearing titled “To review the impact of enforcement activities by the Department of Labor on specialty crop growers,” in which the DOL’s Wage and Hour Administrator David Weil and Oregon Labor Commissioner Brad Avakian testified.

Under the hot goods provisions, goods produced in violation of the Fair Labor Standards Act’s (FLSA) minimum wage, overtime and child labor provisions are considered “hot goods” because they are tainted by the labor violations and pollute the channels of interstate commerce. The FLSA makes it illegal for anyone to transport, ship, deliver, or sell “hot goods” in interstate commerce. Section 17 of the FLSA authorizes the Department of Labor to seek a court order forbidding anyone from placing tainted goods into the stream of interstate commerce (a “hot goods order”). Hot goods orders are a powerful remedy against illegal practices that harm low-paid workers who cannot afford to wait to be paid properly. To read more about the hot goods provisions, see our fact sheet.

The Horticulture, Research, Biotechnology, and Foreign Agriculture subcommittee is led by members from farming districts: Chairman Austin Scott (R-GA) and Ranking Member Kurt Schrader (D-OR). Both of these members seem to have a bullseye on farmworkers. Rep. Schrader has introduced two bills to limit farmworkers’ rights to healthcare and labor protections. Rep. Scott has also introduced legislation to defund the Legal Services Corporation just days after the legal services program in Georgia announced that it had assisted an EEOC determination that a Georgia grower in Scott’s district was discriminating against US workers in favor of H-2A agricultural guestworkers.

Rep. Schrader’s vendetta against DOL on behalf of “my” farmers was clear in the many, many, many questions he asked. Many of the questions were related to a 2012 case in which DOL invoked the hot goods provisions against 3 blueberry growers in Oregon for failure to pay the minimum wage to many workers and for violation of child labor laws. Although the cases settled, two of the growers sought to vacate the settlement agreements almost a year later by claiming that their due process rights had been violated and they had been coerced into accepting the settlements due to the threat of a hot goods injunction. A federal district judge overturned the settlement agreements and reopened the case. DOL has requested permission to appeal the decision; the case is still pending.

With the sole exception of Wage and Hour Administrator Weil, the hearing lacked any consideration of the farmworker perspective, including the extensive labor law violations in agriculture or the experiences of the farmworkers in the controversial Oregon cases. Instead, the underlying sympathies and assumptions seemed to be that contrary to widespread statistics, growers are not really violating the law, and thus, are the real victims. There were many questions about how the poor beleaguered farmers will recoup their attorneys’ fees, legal costs, etc.

Of course, not all agricultural employers break the law. In fact, the primary purpose of the hot goods provisions is to protect law-abiding employers from being competitively undermined by unscrupulous employers seeking unfair business advantage by unlawfully lowering their labor costs.

The hearing sent a clear message to the Obama Administration to curtail enforcement of the hot goods provision in agriculture. We urge the DOL to continue to enforce the FLSA hot goods provision to maximize its limited enforcement capabilities, to incentivize compliance with the law, and to ensure that all workers receive their fair day’s pay. Representatives Scott and Schrader have filed a bill, HR 1387, that would exclude perishable agricultural goods from the hot goods provisions of the FLSA. Congress should end the discrimination against farmworkers in our nation’s labor laws, not seek to expand the exclusions.

by Megan Horn
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Wednesday, 04 June 2014

Confronted with an escalating labor dispute, mounting federal government scrutiny, and a state court restraining order aimed at protecting domestic workers, Washington State berry grower Sakuma Brothers Farms has withdrawn its controversial application seeking authorization to employ foreign workers under the federal H-2A temporary agricultural “guestworker” program. Sakuma’s application had requested approval to hire as many as 438 H-2A workers to harvest its berries this season, to effectively replace the domestic workforce that the company had employed for the past several decades.

Sakuma’s now-abandoned H-2A strategy was a response to efforts begun last year by its domestic workers to bargain collectively for better wages and working conditions. The domestic workers, organized as “Familias Unidas Por la Justicia” (Families United for Justice), negotiated some modest improvements, but Sakuma failed to honor its agreements, and a series of strikes and work stoppages punctuated last year’s berry harvest season.

In support of the Familias Unidas workers’ struggle, Farmworker Justice represented the workers in administrative proceedings before the U.S. Department of Labor, relating to Sakuma’s H-2A application. In these procedings, Farmworker Justice urged the DOL not to approve Sakuma’s H-2A application based on the company’s violation of basic H-2A program requirements. Critically, Sakuma’s application violated one of the program’s fundamental guarantees: employers may use H-2A guest workers only if it can demonstrate that there is a shortage of domestic workers available to do the jobs. Although more than 460 Familias Unidas workers are ready and willing to return to work this season, Sakuma attempted to deny employment to workers who participated in strikes last year. With the pro bono legal assistance of Seattle law firm Schwerin Campbell Barnard Iglitzin & Lavitt LLP, Familias Unidas secured a state court restraining order prohibiting Sakuma from retaliating or discriminating against workers who engaged in worker organizing activities.

Sakuma’s withdrawal of its H-2A application came as no surprise, given the rigorous administrative review by the DOL and the state court’s ruling that ordered Sakuma to stop retaliating against the Familias Unidas workers. Farmworker Justice welcomes Sakuma’s decision to withdraw. It remains to be seen, however, whether and to what extent the company will rehire the Familias Unidas workers and refrain from retaliation. We will continue to monitor the situation closely.

by Nicholas Marritz
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