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
Two weeks have passed since President Obama’s announcement of executive relief. Farmworker Justice, along with many individuals and organizations, is working hard to share information about the upcoming opportunity for deferred action through the new deferred action program for parents (DAPA) and the expanded DACA programs. Information is available on our webpage, www.farmworkerjustice.org, and the sisepuede.org website. We are working with the UFW Foundation and other farmworker and immigration groups to plan for the implementation of administrative relief when the application period begins in around May 2015. Our Spanish-language outreach flyer can be found here.
Even as we continue to plan to implement administrative relief, we are also having to defend the program against congressional attacks. Following last week’s Thanksgiving recess, Congress returned this week to a brief session. As expected, President Obama’s executive action on immigration came under immediate attack by House Republicans.
On Tuesday, the House Committee on Homeland Security held a hearing titled “Open Borders: The Impact of Presidential Amnesty on Border Security.” Secretary of Homeland Security Jeh Johnson testified at the hearing, defending the executive actions on immigration as a common sense approach to enforcing immigration law. The House Judiciary Committee also held a hearing on Tuesday, with a biased title “President Obama’s Executive Overreach on Immigration.” As the name implies, the hearing focused on whether or not the President has the authority to take his administrative actions on immigration, particularly the Deferred Action for Parental Accountability program (DAPA). Republicans and their witnesses claimed that the President does not have the authority to create deferred action programs. The Democrat members’ witness, Marielena Hincapie, executive director of the National Immigration Law Center, defended the President’s constitutional authority as a proper exercise of prosecutorial discretion. Farmworker Justice submitted statements for the record of both hearings to support the president’s executive action and highlight its importance to agricultural workers.
With some exceptions, there is broad consensus among legal scholars that the President has ample authority to create DAPA and DACA along with his other executive actions on immigration. His actions are supported by a legal memo by the Office of Legal Counsel. One hundred and thirty-five legal scholars have signed a statement stating that the President’s actions were constitutional and within his legal authority. Separately, four lawyers who formerly served as general counsel to US Citizenship and Immigration Services wrote a letter supporting the President’s authority to take these actions.
On Thursday, the House passed Rep. Yoho’s (R-FL) bill, H.R. 5759, the “Preventing Executive Overreach on Immigration Act of 2014” by a 219-197 vote. H.R. 5759 asserts that President Obama’s deferred action program has no statutory or constitutional basis and seeks to categorically prevent the executive branch of the government from providing deferred action going forward, with only limited exceptions. The bill also incorrectly implies that President Obama’s deferred action programs provide categorical relief, instead of case-by-case relief. The House voted largely along party lines with a few pro-immigration reform Republicans voting against it and 3 Democrats voting for the measure.
Farmworker Justice condemns the House’s passage of HR 5759, which would strip away potential protections and work authorization from the many aspiring Americans who could benefit from the President’s executive authority, including the parents of US citizen and LPR children and DACA individuals who came to the country as children. Instead of playing political games, the House should take up and pass HR 15, the comprehensive immigration reform bill that is similar to the bill passed by the Senate over a year ago, S.744.
Yoho’s bill was largely a symbolic measure as the Senate is not expected to take it up and President Obama has promised to veto it. A few other anti-immigrant Republicans voted against the bill or abstained from voting in protest because they would like the House to be more aggressive in opposing the President’s action. Specifically, those members along with Senator Ted Cruz would like to see the deferred action programs defunded through the government spending bills up for a vote next week, even though this would almost certainly lead to a government shutdown.
House Speaker John Boehner and other Republican leaders do not support shutting down the government (Republicans were largely blamed for the last shut down). Instead, Speaker Boehner proposes to split the funding bill in two parts, funding all of the government except for the Department of Homeland Security (DHS) until September 2015 and funding DHS, which among other things is responsible for immigration services and enforcement, only for a few months. That way, this fight can play out again in 2015 when Republicans control both houses of Congress.
Seventeen states also filed a lawsuit against the President arguing that his executive actions are in violation of his constitutional duty to enforce the laws and are placing an illegal burden on state budgets. The lawsuit is led by Attorney General and Governor-elect of Texas, Greg Abbott. It is unclear whether the states have standing, or the right to sue the President at all.
Some grower groups have expressed concern that the President’s administrative relief will not be very helpful to them and that it may instead harm them by giving their workers work authorization and the ability to “migrate into other industries that give them year-round work, holidays, pensions, more security. And that would be obviously detrimental to agriculture.”
We are expecting to see efforts to pass an agricultural program in the upcoming Congress. Incoming Senate Majority Leader Mitch McConnell (R-KY) has declared that he will “bust up” the Senate comprehensive immigration reform bill to pass it in pieces. He said that he would like to focus on border security, E-verify and changes to the H-1B and H-2A programs. McConnell, however, did not promise to bring up the piece that would offer undocumented immigrants a path to citizenship. We will be watching any efforts to change the H-2A program closely. Despite many grower complaints that the H-2A temporary foreign agricultural worker program is “unworkable,” the H-2A program has seen huge increases in recent years. Program use has expanded over 140% since 2005, with 18% growth in the last year alone. From our perspective, the H-2A program’s modest protections are inadequate to protect workers and the program is rife with abuse. H-2A workers typically arrive indebted and fearful, are tied to an employer for an entire season, and must leave the country when the job ends, factors which make workers extremely vulnerable to abuse.
In the upcoming Congressional session, Farmworker Justice will continue to fight against proposals for harsh and exploitative temporary agricultural guestworker programs and will urge Congress to provide farmworkers and other aspiring Americans currently residing in the US a path to permanent legal status and eventual citizenship.
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.