FJ Blog

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
(0 total comments)
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
(0 total comments)
Friday, 20 February 2015

President Obama’s Deferred Action Programs Put on Hold by Court

A very conservative, outspoken federal judge issued a temporary order Monday blocking the Federal Government from implementing the President’s deferred action programs that were announced on November 20, 2014, known as DAPA and expanded DACA. The ruling was not unexpected as the federal judge, Judge Andrew Hanen, has made his views on the President’s policies on immigration known in the past. Unfortunately, the ruling creates uncertainty and fear in affected communities, but at this time is only a temporary roadblock as President Obama’s administration is appealing the order. Many legal scholars believe President Obama’s actions are constitutional and likely to prevail. Farmworker Justice urges people to stay calm and to continue preparing for administrative relief. Read our updated flyer on administrative relief in Spanish and English.

Judge Hanen based the injunction, or order blocking the deferred action programs, on the claim that the Obama Administration had not followed proper procedures in creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expanded Deferred Action for Childhood Arrivals (expanded DACA) program. This finding may be overturned as the programs are a general statement of policy based in prosecutorial discretion and do not require formal rulemaking. The judge has not yet addressed whether the programs violate any law or the Constitution. For a more detailed explanation of why Judge Hanen’s decision is wrong, read Harvard Law School Professor Cass Sunstein’s article in Bloomberg View and University of Chicago Law School Professor Eric Posner’s article in Slate.

Not just anyone can challenge a federal policy in court. Challengers have to meet a certain legal standard, known as standing, which includes a requirement to show that the plaintiff will be harmed by the law. The court in Texas v. US held that of the 26 states challenging the programs, Texas, at least, has “standing,” or the right to sue. A recent lawsuit by the notorious Arizona Sheriff Joe Arpaio challenging the President’s deferred action programs was thrown out of court because Arpaio could not show that the programs would cause him any harm. In the Texas case, Judge Hanen found that the State of Texas will be harmed by the cost of processing drivers’ licenses for deferred action recipients (apparently fees don’t cover the costs). He did not take into account any potential financial benefits to Texas through increased tax revenue and economic stimulation that is likely to result in the granting of work authorization to many of the state’s residents. This holding that Texas has standing to sue could also be overturned on appeal.

Today, the White House announced that it will seek an emergency stay – a request to block the injunction - of the judge’s order, which could speed up the appeals process. The normal process to appeal could take several months or longer. The Justice Department plans to file the stay by Monday at the latest.

Important things to know about the judge’s ruling:

The Obama Administration is likely to ultimately win the court case. 
Farmworker Justice, along with many legal experts, believes that President Obama’s executive actions are a proper exercise of his prosecutorial discretion, are constitutional, and should ultimately prevail. 

Potential DAPA and expanded DACA applicants should continue to collect their documents, save money for application fees and otherwise prepare to apply for deferred action. 
However, there is not currently an application process and they should not pay anyone to apply for them. For now, potential applicants should go to community information sessions or check out online resources to see if they may be eligible.

The original DACA program is still up and running.
The court order only affects the prosecutorial discretion memo by Secretary of Homeland Security Jeh Johnson dated Nov. 20, 2014 that outlines the changes to DACA and the new DAPA program. The original DACA program is not affected. Because the Nov. 20th memo expanded the DACA program and work authorization from 2 to 3 years, it appears that for now, work authorization may only be issued for 2 years. New applicants and renewal applicants should still submit their applications. The eligibility guidelines are available here

The Administration’s new enforcement priorities are still in effect.
The court case does not affect any of the other executive action memos on immigration. In fact, the judge stated that the Administration has the authority to set priorities as to who should be deported. The Department of Homeland Security’s new enforcement memo, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” outlines the Department of Homeland Security’s priorities for deportations. Most undocumented immigrants without criminal convictions or with very minor convictions who did not enter or attempt to enter the US after December 31, 2013, will not be a priority for deportation and are not likely to be arrested or deported by DHS.

Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families. Several hundred thousand farmworkers who labor on our farms and ranches could be eligible for these deferred action programs. The programs are well within the President’s authority. By eliminating 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.

Major Victory in Case of Guestworker Abuse
On a more positive note, a federal jury in Louisiana awarded $14 million to 5 former Indian H-2B guestworkers, who were the victims of labor trafficking, fraud, racketeering and discrimination. Congratulations to the workers, their attorneys and the many other organizations and individuals who have worked hard for years to help bring justice to these workers. The workers are represented by the Southern Poverty Law Center, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute, Crowell & Moring, LLP, Sahn Ward Coschignano & Baker. More than 200 other workers have pending claims against the employer, Signal International, and the immigration lawyer and international labor recruiter that it used.

by Megan Horn
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