Immigration and Labor Rights

Friday, 20 March 2015

The fight over President Obama’s executive actions has continued in the courts and in Congress over the last few weeks. Last week, the Department of Justice (DOJ) petitioned the 5th Circuit Court of Appeals to issue an emergency “stay” lifting the temporary order preventing the Obama Administration from implementing DAPA and expanded DACA. The 5th Circuit has given Texas and the other states until March 23rd to respond. DOJ requested that the court issue a decision on the stay by March 27th; however, the court is not bound by this request. The legal requirements for obtaining such a stay are difficult to meet. DOJ has also filed an appeal of Judge Hanen’s temporary injunction, which is also proceeding in the 5th Circuit, but a decision is not expected for at least a few months. DOJ is requesting first that that the Court of Appeals block the entire order, or alternatively that the 5th Circuit limit the order to Texas – the only State that Judge Hanen found would be harmed by the programs – or at the very least limit the order to the states that have sued the Federal Government and allow the programs to be implemented in those states that welcome them.

Fourteen states and the District of Columbia filed a brief in support of the Federal Government’s request for a stay. These states, led by Washington and California, argue that they welcome the executive actions and will be harmed by the judge’s order to delay its implementation. The 14 states (where most of the undocumented population resides) predict that rather than harm their economies, as the states that have sued are claiming, the deferred action programs will bring economic benefits to their states.

Meanwhile, the main case continues in the district court in Texas. On Thursday, Judge Hanen held a hearing on the plaintiff states’ allegations that DOJ misled the judge by claiming that the immigration action hadn’t been implemented. Pursuant to the DAPA and expanded DACA memo, the Department of Homeland Security (DHS) began granting deferred action and employment authorization for DACA recipients for 3 years on November 24, 2014, a change from the 2 year grants previously issued. DHS ceased issuing 3 year grants of deferred action and work authorization as soon as the Judge’s temporary order blocking the implementation of the DAPA & expanded DACA memo was issued. During that period, about 100,000 DACA applicants were granted deferred action and work authorization for 3 years.

Congressional Hearings

House and Senate committees have been busy holding hearings and markups focused on attacking President Obama’s executive actions and highlighting their anti-immigrant, enforcement-only approach. Of note, the House Judiciary Committee marked up the bill formerly known as the “SAFE Act”, now called the “Michael Davis, Jr. in Honor of State and Local Law Enforcement Act,” HR 1148, which would criminalize people for being undocumented in the US and would undermine community safety by requiring local law enforcement agencies to enforce immigration law. This month, the House Judiciary Committee also passed the “Legal Workforce Act,” a mandatory E-Verify bill, along with two bills limiting access to due process for asylum seekers, unaccompanied minors and other vulnerable immigrant populations.

In the midst of these attacks on immigrants and their contributions to our society and economy, one member of Congress lifted up the positive contributions of farmworkers. During the House Subcommittee on National Security Health Care, Benefits & Administrative Rules hearing on “The Fiscal Costs of the President’s Executive Actions on Immigration,” which generally attacked the President’s executive actions as well as tax credits for low-income working people with US citizen and lawful permanent resident children, the witness from the Heritage Foundation, Robert Rector, revealed the classist undertones of this debate by denigrating working people without a college education. Rep. Ted Lieu (D-CA) responded to Rector’s statements by stating that it may be “easy for people like you and me who wear ties and work in offices to cast aspersions on people who have 10th grade educations,” but farmworkers have died so that we can have cheaper groceries. Lieu spoke passionately about Maria Isabel Jimenez, a 17-year-old farmworker in California, who died of heat stroke saying that she “has given more to American society than you or I ever will.”

Agriculture Groups Oppose Mandatory E-Verify

The Agriculture Workforce Coalition sent a letter to House leaders Tuesday expressing their opposition to Rep. Lamar Smith’s (R-TX) “Legal Workforce Act.” Over 140 agriculture groups signed on to the letter that stated that the groups would oppose mandatory E-Verify in agriculture until Congress creates a “solution for agriculture.” Unfortunately, the letter stopped short of calling for a path to citizenship for our nation’s current farmworkers or even a path to permanent legal status. Instead, the letter calls for “work authorization for experienced agricultural workers and a new, flexible guest worker program for long term stability...” Work authorization falls short of a path to lawful permanent residency and eventual citizenship.

GAO Report Highlights Abuse of H-2 Workers

A recent GAO report “H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers” highlights the extensive nature of abuses in the H-2A and H-2B programs. The report found that H-2 workers may be required to pay recruitment fees to obtain jobs in the United States and noted that workers who were indebted due to the payment of recruitment fees are more vulnerable to abuses in the workplace as they are less likely to complain. Data in the report also highlighted the rampant gender and age discrimination in the H-2A program, as the vast majority of H-2A workers are men below the age of 40. One important recommendation in the report is that DHS publish the names of recruiters listed on the I-129 applications to USCIS.

The H-2B Program is Running Again

As you may be aware, the Department of Labor (DOL) and US Citizenship and Immigration Services (USCIS) temporarily suspended processing of H-2B applications earlier this month due to a court order finding that the DOL has no authority to issue labor certification in the H-2B program. USCIS & DOL announced that they will continue processing applications after DOL filed an unopposed motion for a stay of the court order until April 15th earlier this week. The Department of Homeland Security and DOL also announced that they will jointly promulgate an interim final rule by April 30th to resolve the issue of authority. 

Farmworker Justice honors the contributions of farmworkers to our nation’s agricultural abundance. We will continue to fight for fair immigration reform and equal labor rights that reflects the contributions of farmworkers and their value to our society.

by Megan Horn
(0 total comments)
Tuesday, 03 March 2015

The Department of Homeland Security is Funded Through September

Last week, Congress narrowly averted a shutdown of the Department of Homeland Security (DHS) for at least one week. As you’ll remember from previous updates, House Republicans had passed a DHS-funding bill that included language blocking President Obama’s executive actions on immigration, including the 2012 DACA program. The Senate held repeated votes on this legislation but was unable to muster the 60 votes needed to move forward due to unanimous opposition by Democrats. Furthermore, President Obama had promised to veto the bill.

On Friday morning, the last day that the DHS was funded, the Senate removed the House’s language blocking the President’s deferred action programs and passed a “clean” DHS-funding bill with the support of Democratic Senators. To satisfy conservatives focused on blocking battling President Obama’s executive actions, Senator Collins introduced a bill that would prevent President Obama’s 2014 executive actions on immigration from going into effect. So far, the Collins’ bill has lacked the votes to move forward, although four Democrats – Senators Donnelly (IN), Heitkamp (ND), Manchin (WV), and McCaskill (MO) – joined all Republicans to vote in favor of moving forward on the bill. The Senate is expected to revisit it after the DHS funding battle is over.

The Senate passage of the “clean” funding bill put the funding issue back in the House’s hands, where there was a surprising defeat of a proposed 3-week extension of current funding before the House managed to get a one week funding extension passed shortly before midnight. The one week extension relied on the support of House Democrats, who were reportedly promised the opportunity to vote on a clean funding bill through September this week.

On Tuesday, the House passed a bill by 257-167 to fund the Department of Homeland Security through September without any language blocking President Obama’s executive actions on immigration. 167 Republicans voted against the bill. The bill has already passed the Senate and the President is expected to sign it into law.

House Judiciary Committee to Mark-up Harsh Enforcement-only Bills

The House Judiciary Committee will begin marking-up four punitive, enforcement-oriented immigration bills on Tuesday. The four bills are revived versions of previous-failed bills. They are Rep. Trey Gowdy’s (R-SC) draconian interior enforcement “SAFE Act” from last congress, renamed the “Michael Davis, Jr. in Honor of State and Local Law Enforcement Act” (H.R. 1148); Rep. Lamar Smith’s (R-TX) “Legal Workforce Act,” which requires all employers to use E-Verify; Rep. Jason Chaffetz’s (R-UT) “Asylum Reform and Border Protection Act of 2015” (H.R. 1153), which would gravely harm asylum seekers, survivors of domestic violence and trafficking, military members, and abused neglected or abandoned children; and Rep. John Carter’s (R-TX) ironically named, “Protection of Children Act of 2015” (H.R. 1149), which would lower due process standards for all unaccompanied children and expedite their removal from the US.

Mandatory E-verify and local law enforcement of immigration would increase fear and drive undocumented farmworkers deeper into the underground economy, leading them to work for unscrupulous employers and labor contractors. These bills would further destabilize the farm labor force and harm the estimated 1.2 million undocumented farmworkers working hard to put food on our tables.

Enforcement-only approaches to immigration have been tried before and failed. The House Judiciary Committee is out of touch with the large majority of Americans who understand that deporting 11 million people is inhumane and unrealistic. The House Judiciary Committee should stop wasting time with political posturing and instead work towards a compromise solution to fix our immigration system, which must include a path to citizenship for the 11 million undocumented immigrants currently residing in the US.

The President Promotes his Executive Actions

President Obama spoke at a televised town hall last week in Miami on his executive actions on immigration. Members of the United Farm Workers and the Florida Association of Farmworkers attended the event along with leaders of their organizations. The President also met with several leaders of immigrant organizations, immigrants’ rights groups and labor unions last week. Obama expressed confidence that the Administration will prevail in the lawsuit against his deferred action programs—DAPA and extended DACA. The President also promised that he would veto any piecemeal legislation that does not contain a path to citizenship for the 11 million.

Legalized Farmworkers Will Stay in Agriculture

A recent NPR news story debunks the myth that undocumented farmworkers will leave agriculture once they obtain work authorization. As an expert in the article explains, when farmworkers do leave agriculture, it is not because of their legal status, but because they can't earn enough money from the low-wages and temporary work. Therefore, the answer to stabilizing the farm labor market is to improve wages and working conditions and provide stable employment. The story indicates that some growers are lobbying Congress for a new temporary agricultural guestworker program, but fails to mention that growers already have access to an unlimited number of guestworkers through the H-2A temporary agricultural guestworker program. A new agricultural guestworker program with lower wages and fewer worker protections than exist in the H-2A program is not a solution to stabilize the agricultural labor market. It would only lead to greater worker exploitation and displacement of US farmworkers and other experienced workers.

The real solution is to offer experienced farmworkers the opportunity to earn citizenship and for the food industry to adapt and improve farm jobs and conditions in order to maintain a productive and stable workforce and food supply. Farmworker Justice continues to monitor Congress for harmful agricultural guestworker proposals and educate legislators and their staff on such proposals and the H-2A program. 

by Megan Horn
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Wednesday, 25 February 2015

A group of farmworkers is attempting to enforce their rights to paid rest breaks and Farmworker Justice's litigation team has been supporting their efforts. The workers, who picked berries at Sakuma Brothers Farms in Washington, sued to enforce several state and federal employment laws. Those workers have now taken their battle to the Washington Supreme Court, where they seek a ruling that would prevent Washington growers from escaping their legal duty to pay workers for their rest breaks.

Sakuma’s berry pickers (like many farmworkers across the country) are currently paid on a piece-rate basis, meaning that they earn money based on how many berries they pick – typically, a piece-rate worker is paid a certain amount of money for each bucket they fill. Piece rate wages are low, forcing workers to be as quick and efficient as possible to maximize their income.

While Sakuma Brothers does allow its workers to take rest breaks, it admits in court filings that it did not pay its berry pickers separately for their rest breaks. Instead, their pay was calculated by simply multiplying the amount of berries they picked by the piece rate. As a result, farmworkers could either choose to make extra money by working through their rest breaks or to take their rest breaks and receive no pay for the time they spent resting.

Sakuma argues that the piece rate they pay their workers includes pay for rest breaks. Since no Washington court has yet decided the issue, the state’s Supreme Court took the issue on. There, the workers argued that the state’s farmworker rest break law – which gives farmworkers the right to rest breaks “on the employer’s time” – entitles them to separate pay for their rest breaks.

With the help of the National Employment Law Project, Sea Mar Community Health Centers, and Migrant Clinicians’ Network, Farmworker Justice filed an amicus curiae brief with the Court, arguing that unpaid rest breaks are harmful to workers’ health. 

Farmwork is among the most dangerous jobs in the country. The risk for injury continues to get worse throughout the day – the longer a worker has been picking berries, the more likely he or she is to get injured. Scientific studies of rest breaks show that they have a profound impact on injury rates. One short rest break is enough to reduce a worker’s risk of injury to its baseline level. 

As Sakuma admits, piece rate workers will often work through their rest breaks if they are unpaid. Workers feel as though they cannot afford to take an off-the-clock break, so they continue working even though it puts them at risk of injury. 

The Capital Ag Press cited the brief in an article on the lawsuit, noting that the brief makes the argument that workers will forego their rest breaks. What that article fails to mention is the crux of the brief – that in order to ensure that the worker protections in Washington’s rest break laws are meaningful, the court must require growers to pay their piece rate employees separately for their rest breaks. Otherwise, the promise of a paid rest break will mean nothing for Washington’s many piece rate workers.
 

by David Mauch
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