Farmworker Justice is a national, non-profit advocacy and education organization that works to improve working and living conditions for migrant and seasonal farmworkers and their families. Since its founding 30 years ago, Farmworker Justice has advocated for farmworkers in matters that affect their immigration status, working conditions, health occupational safety and access to justice.. Farmworker Justice submits these comments in response to the request of the U.S. Department of Labor (“DOL”) for opportunities to shape smarter regulations.
1. DOL Should Strengthen Protections in the H-2A Agricultural Guestworker Program.
The H-2A program offers agricultural employers an unlimited number of visas each year to bring in temporary foreign workers to perform agricultural work. Despite the complaints of some employers, the H-2A program is available to them and is used by many growers to expand their business. The program is rampant with abuse, as revealed in numerous exposés and the Farmworker Justice report, No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers, available at http://bit.ly/1bJLmqU. The H-2A program’s worker protections, which were originally established under President Reagan and are rooted in the remedies adopted to reduce abuses associated with the Bracero program of 1943-64, are too weak and inadequately enforced.
Once employers invest in the H-2A program, the H-2A program’s structural flaws result in a system in which many employers prefer guestworkers over U.S. workers. H-2A workers typically pay illegal recruitment fees for the opportunity to work in the United States and therefore arrive indebted and desperate to work to repay their debt. As a result, they will often work to the limits of human endurance to keep their employers happy with their performance. They 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. Workers also fear being blacklisted the following year, which makes them unlikely to complain about working conditions or labor violations. Additionally, H-2A employers do not pay Social Security or unemployment taxes on the guestworkers’ wages, but must do so on the US workers’ wages, which creates another incentive to avoid hiring US workers. H-2A workers also are excluded from the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), the principal federal employment law for farmworkers. Finally, employers are able to handpick their H-2A workers – they are virtually all young men—often resulting in discrimination in hiring against women and older farmworkers.
Reports from farmworker advocates on the ground indicate that US workers who seek H-2A employment are often turned away in the application process or terminated or forced to quit within the first few days on the job as a result of unfair and possibly discriminatory treatment in the workplace. Some workers are never informed about H-2A jobs by the state workforce agency because the staff knows the employer just wants to hire H-2A workers. Some employers place job requirements in the job order – used to recruit US workers— that are intended to disqualify or discourage US farmworkers from applying. For example, job orders may include a very specific experience requirement, leading to the potential disqualification of experienced farmworkers with years of experience in different crops. Job orders may also include reference requirements, drug testing and criminal background checks. In many cases, these requirements are not imposed on H-2A workers; they are merely a means to exclude US workers from those jobs.
A. Recommendations for Safeguarding the Interests of American Workers and Protecting Guestworkers
i. DOL Should Increase Oversight and Enforcement of Worker Protections in the H-2A Program.
The current worker protections in the Department of Labor’s H-2A regulations are important to safeguarding the rights and interests of both US and H-2A workers and must be vigorously enforced. We appreciate DOL’s recent increased enforcement in the H-2A program, yet more oversight and enforcement is needed. Because H-2A workers are often reluctant to complain about violations of their protections due to their limited status, DOL enforcement is even more critical. DOL should also exercise jurisdiction over H-2A recruitment abroad, including by enforcing its prohibition of recruitment fees. More recommendations regarding steps DOL should take to address international labor recruitment abuses are included in the section on international labor recruitment below.
ii. DOL Should Provide Increased Oversight to Ensure that State Workforce Agencies are Complying with the Law.
State workforce agencies (SWAs) play an important role in screening H-2A job orders for illegal or discriminatory job terms and recruiting and referring US workers to H-2A jobs. Job terms should not be imposed to obstruct the hiring of U.S. workers. Experience requirements are often used to displace US workers from H-2A jobs. When SWAs are unsure if a job term is legal, they must conduct surveys to see if the job term meets the relevant standard to be acceptable in the job order. Too often these surveys are not conducted and the SWA relies on information from employers’ associations, which may be biased. DOL should require SWAs to be more vigilant in reviewing H-2A applications for illegal job terms and increase training and oversight to ensure that they are complying with the law and protecting US workers.
One way to reduce the number of job terms such as experience requirements that are used to displace US workers is for DOL to ensure that the SWAs are enforcing the job service regulations governing the processing of clearance orders (which includes but is not limited to H-2A job orders) located at 20 CFR 653.500 et seq. The job service regulations were designed to protect agricultural workers from being discriminated against in accessing state job services and employment. 20 CFR 653.501(d)(4) requires that the job terms on clearance orders must meet a higher “prevailing practice standard,” (found in ETA Handbook No. 398) than the “normal and accepted standard” (applied in Dept. of Labor, Div. of Foreign Labor Certification, v. Barry’s Ground Clover, 2012-TLC-11, 7) used for many job terms in the H-2A regulations. Using this higher standard would eliminate many experience requirements and other job terms that are currently allowed in the H-2A job orders. In sum, employers that obtain government assistance in finding workers should not offer substandard job terms that allow for discrimination against US workers.
iii. The Department of Labor Should Increase the Fees it Charges for Employers to Use the H-2A Program.
Some growers and their representatives complain that they do not receive their H-2A workers in a timely manner. Many growers argue that the solution is to “streamline” DOL’s labor certification process, which would reduce DOL oversight and strip away some of the worker protections in the program.
In reality, the DOL processes applications in a relatively timely manner, especially given the short timeframe in which it must adjudicate the applications. DOL data indicates that in FY2014, it issued final decisions on complete applications in a timely manner in 91% of applications, a significant improvement over FY2013 when only 69% of applications were processed timely. In quarter 2 of the fiscal year, DOL tends to process the highest number of applications and correspondingly, have the lowest timeliness rate. In quarter 2 of FY2014, DOL processed 84% of the applications on time, with almost double the number of applications compared to the next highest volume quarter.
To address employers’ timeliness concerns and DOL’s limited resources in overseeing the H-2A program, DOL should increase the fees that it charges employers for H-2A labor certification. Fees should be set to recover the true cost of the H-2A program. By statute, the Secretary of Labor may set reasonable fees to cover the cost of processing applications for labor certification. Currently, DOL charges $100 for the application for temporary labor certification plus $10 for each worker, but the total fee for the application may not exceed $1,000. These fees have never been raised since the inception of the H-2A program. (Appendix I of ETA Handbook No. 398, Field Memorandum No. 73-87).
iv. DOL Should Increase the Bond Amount for H-2ALCs and Allow Workers to Recoup the Bond Money through Civil Litigation.
The bond amounts that H-2A labor contractors (“H-2ALCs”) must pay to petition for H-2A workers are too low. Currently these amounts are $5,000 for H-2ALCs employing fewer than 25 workers, $10,000 for 25 to 49 workers, $20,000 for 50 to 74 workers, $50,000 for 75-99 workers, and $75,000 for more than 100 workers. At a minimum, the bond should cover the costs of reimbursing H-2A workers for their visa, transportation and subsistence costs to travel to the US plus some amount to cover underpayment of wages. Factoring in the possibility of having to compensate for possible wage violations demonstrates the need for an even higher bond.
We also request that civil litigants should be able to access the bond. Because DOL’s Wage and Hour Division’s resources are limited, it cannot enforce all of the violations in the H-2A program. Therefore, allowing private litigants to access the bond for relief of violations by H-2ALCs would help address H-2A program violations. This is also in keeping with the Congressional intent in enacting the H-2A program, which clearly envisioned private suits as an important way to enforce workers’ rights under the program. Finally, we suggest that the Department provide H-2A contractors with an alternative to the bonding requirement that will accomplish the same purpose – where there exists a written agreement signed by a fixed-situs employer designating the fixed-situs employer as a joint employer with the H-2ALC, no bond will be required. If the H-2ALCs plan to supply H-2A workers to multiple fixed-situs employers, they would need to have a signed joint employer agreement with each one of them.
2. International Labor Recruitment
Farmworker Justice is a member of the International Labor Recruitment Working Group (ILRWG), which is a coalition of worker advocacy non-profit organizations seeking to end the systemic abuse of international workers who are recruited to the U.S. ILRWG members collaborate across labor sectors to develop comprehensive policies and advocate for reforms, including increased enforcement of existing laws and increased transparency in the labor recruitment process. ILRWG has developed policy recommendations for DOL for international labor recruiting and we urge you to adopt those recommendations. These recommendations include ensuring greater transparency regarding the international labor recruitment process to address and prevent recruitment fraud, fees, and discrimination. Some examples of ways in which transparency can be improved are by making data provided to each agency publically available online and searchable and by developing a recruiter registry. DOL must also take steps to make the prohibition against recruitment fees meaningful for workers in a way that does not penalize workers by leading to potential loss of their visas. Finally, DOL should improve enforcement mechanisms and ensure guestworker access to justice. One key method of helping guestworkers enforce labor protections is by creating a process for those workers to obtain deferred action (including employment authorization) from DHS when workers seek to enforce their labor protections.
3. Occupational Safety and Health:
A. OSHA Should Update the Fall Protection Standard.
In 2010, OSHA proposed to update, revise, and reorganize the walking-working surfaces and personal protective equipment standards set forth at 29 C.F.R. § 1910 subparts D and I (“fall protection standards”). We urge OSHA to extend the proposed fall protection standards to agricultural employment. Every year, thousands of farmworkers suffer fall-related work injuries, causing economic hardship to the workers and their families, and all too often resulting in serious disability and tragic death. A great deal of this human and economic toll is readily preventable. In industries covered by OSHA’s existing fall protection standards, fall-related deaths and injuries have been substantially reduced through compliance with the standards. But compounding the occupational hazards and adversities already suffered by farmworkers, agricultural employment has been excluded from coverage of the fall protection standards. (See 29 C.F.R. 1928.21(b)). This exclusion is not conscionable, cannot be justified, and must not be allowed to continue. We ask OSHA to finalize and implement the fall protection standards in a manner that covers all agricultural workers.
B. OSHA Should Continue Rulemaking for the Injury and Illness Prevention Program (I2P2).
Injury and illness prevention programs implement proactive, collaborative processes to identify, assess and document workplace hazards by soliciting input from workers, inspecting the workplace and reviewing available information on hazards. They also include provisions to educate and train workers on hazard identification and injury prevention. Such programs have shown to be effective at reducing workplace injuries, illnesses, and fatalities, and thirty-four states, including California, currently require or encourage employers to implement them.
In 2010, OSHA began a rulemaking process to implement an Injury and Illness Prevention Program (I2P2), but removed it from its regulatory agenda last year. OSHA should move forward with rulemaking, and include agriculture in the covered industries.
C. OSHA Should Update its Farm Labor Camp Regulations
OSHA’s farm labor camp regulations are nearly forty years old. Developments in science and technology tell us that updated regulations are sorely needed to protect farmworkers from hazards in the agricultural workplace. For example, we know that farmworkers and their families are exposed to harmful pesticides through the work clothes they bring home from the fields. Yet the current regulations require only one laundry tub or tray for every thirty people in the labor camp. Workers need washing machines to remove pesticides and other agricultural chemicals from their clothes. Another example is the current OSHA requirement for kitchens which incorporates the U.S. Public Health Service standards from 1965. 29 CFR 1910.142(i).
D. OSHA Should Implement Heat Illness Protections.
Excessive heat exposure while on the job can result in heat exhaustion, with symptoms such as nausea, headaches and extreme thirst, which, if not promptly treated, can progress to heat stroke and death. Heat-related illnesses are a serious challenge for farmworkers, particularly in hot and humid areas of the country. Farmworkers account for more than one in five deaths resulting from environmental heat exposure, and not a growing season passes without reports of tragic – but always preventable – heat stroke fatalities in the fields. Three states – California, Washington and Minnesota – and the military have enacted standards that protect workers from extreme heat conditions. We urge OSHA to implement a permanent heat standard that would apply to all indoor and outdoor workers. The agency should require that workers have access to sufficient drinking water and shade, and be given mandatory rest breaks on particularly hot days, among other measures.
E. OSHA Should Update Farmworker Transportation Safety Regulations.
Farmworkers are dying and suffering serious injuries from preventable incidents due to unsafe transportation vehicles and practices. The Department can and should take action to prevent such incidents and to enforce the law’s insurance coverage requirements that provide farmworkers with medical treatment and compensation when injuries occur. It should also use its existing authority to reduce the trend of employers and labor contractors seeking to shift responsibility for safe transportation to insufficiently regulated entities and individuals who lack the capacity to meet the law’s requirements.
While particularly horrific fatalities have produced sporadic calls for governmental action, the dangers of the highway continue unabated for farmworkers. Short of comprehensive legislative overhaul, administrative changes could significantly improve safety on the road for farmworkers as well as workers’ medical treatment and compensation when injuries occur. We urge the Department to implement transportation safety measures to improve protections for farmworkers.
F. DOL Should Issue Hazardous Occupation Orders to Protect Child Workers.
Despite the uniquely dangerous work and vulnerable workforce, the FLSA actually excludes farmworkers from most protections, rather than providing extra protections. Historically, the agricultural hazardous occupation orders (“H.O.s”) have provided limited protections for farmworker youths with respect to a number of particularly dangerous activities. DOL should revise these H.O.s.
The agricultural H.O.s describe work activities that are particularly hazardous to young workers under age 16 who are hired to work in the agriculture sector. The proposed hazardous orders will not apply to youth who are working for their parents on their own family farm, or to children engaged in non-paid activities as part of their membership in a club such as 4-H. The FLSA only applies if there is an employer/employee relationship. Furthermore, young workers will still have the opportunity to work in agriculture performing less hazardous work until the age of 16. Agriculture should be no different from other dangerous industries, and should have the same protections based on hazards, risks and age-appropriate tasks.
i. DOL must adopt a heat stress H.O. to protect young workers.
Currently, there is no H.O. that provides protection against heat stress and exposure. Farmworker Justice urges the Department to immediately begin development and consideration of a Heat Stress H.O. for adoption in the near-term. Such a regulation is needed to limit the exposure of young farmworkers to extreme temperatures and arduous conditions. Children, as young as 12, are working 8 to 12 hour days in 100-degree heat, performing back-breaking, strenuous labor, and he epidemic of worker injury and death due to excessive heat exposure is projected to worsen in the coming years.
In order to fully protect children, measures must be taken to ensure that young workers are not exposed to conditions that raise their core body temperature above 100.4 F [temperature threshold is in accordance with the World Health Organization (“WHO”) and accepted by the NIOSH and the American Conference of Industrial Hygienists (“ACGIH”)]. Farmworker Justice believes that these measures must include implementing water, rest, and shade requirements and prohibiting the piece-rate payment for children under the age of 16.
During 1992-2006, a total of 423 worker deaths from exposure to environmental heat were reported in the United States. Of these 423 deaths, 25% occurred in agriculture while only 2-3% of the American population is employed in that industry. RC Luginbuhl, LL Jackson, DN Castillo, KA Loringer. Morbidity & Mortality Weekly Report. 2008;57(24):649-653. While mortality for heat stroke ranges from 17% to 70%, depending on the severity and age of the patient, the Environmental Protection Agency has confirmed that children are more susceptible to heat. United States Environmental Protection Agency. Prevention, Pesticides and Toxic Substances. A Guide to Heat Stress in Agriculture. May 1993; EPA-750-b-92-001. The following are risk factors for heat illness in children:
● Greater surface area to body mass ratio than adults
● Production of more metabolic heat per kilogram of body weight
● Slower rate of sweating than adults
● Temperature when sweating starts higher
● Lower cardiac output at a given rate than adults
● Rate of acclimatization is slower
● Thirst response is blunted compared to adults
● Hypohydration affects children more than adults
Bytomski JR, Squire DL, Heat Illness in Children. Current Sports Medicine Reports 2003, 2:320-324
In addition to the risk factors of heat illness in children, common medical conditions that predispose children to an increased risk for heat illness may cause the following: excessive fluid loss, suboptimal sweating, excessive sweating, diminished thirst intake, and hypothalamic dysfunction.
Young workers must be given access, at no cost to themselves, to cool, potable water sufficient to maintain adequate levels of hydration. Workers should be encouraged to drink at least one quart of water per hour that is palatable and served in individual cups. Additionally, young workers must be given periodic rest breaks every hour, which includes access to sufficient areas of shade with enough cover to be able to protect all workers comfortably at one time.
Both California and Washington have implemented heat stress rules and we urge DOL to examine these regulations in implementing new heat stress regulations. While California and Washington have demonstrated the critical importance of having a specific heat standard, the actual standards as written omit a number of areas crucial for adequate worker protection. 8 CCR 3395. In California, the standard does not have a heat stress threshold that accounts for humidity, does not provide for paid, mandatory rest breaks for workers, and only requires employers to provide shade for 25% of the workforce when temperatures rise above 85% and, in Washington, the standard is only applicable from May 1 to September 30 of every year. We urge the DOL to go beyond these measures.
ii. DOL Must Prohibit Piece-Rate Pay for Children.
Currently, there is no H.O. that provides protection against the strenuous demands of the piece-rate compensation system. Many crops in the U.S. are harvested under this system, in which workers are paid by the number of fruits or vegetables harvested and not by the amount of time worked. Association of Farmworker Opportunity Programs, Children in the Fields: An American Problem 16 (2007). Faster, more experienced workers harvesting certain crops on a piece-rate basis can earn more than the minimum wage. However, the rates are low enough that workers often have to work extremely hard for very little.
According to a 2004 Oxfam study, tomato growers in Immokalee, Florida, paid workers “as little as 40 cents for every 32-pound bucket of tomatoes they picked. A tomato picker thus had to harvest 125 buckets— practically 2 tons—of tomatoes to earn just $50 a day.” Oxfam America, Like Machines in the Fields: Workers without Rights in American Agriculture 12-13 (Boston: Oxfam America, 2004), http://www.oxfamamerica.org/files/like-machines-in-the-fields.pdf. Workers who are weaker, slower, or less experienced usually earn considerably less than minimum wage, even though this is illegal. The “best” tomato pickers in the Immokalee area “average 100 to 150 buckets a day for daily earnings of $40 to $60 [at $0.40 a bucket], while women and older workers often pick 70 to 80 buckets, for about $28 a day.”
This compensation system causes farmworkers to work at extreme speed, without breaks, and prompts many farmworkers to bring their children to work with them in the fields. As young workers race to pick as much as possible under this compensation system, the health risks associated with such a work environment increases the likelihood of injury or illness, particularly those related to heat-stress. Moreover, these children may be inclined to skip rest and water breaks in order to maximize their earnings.
The piece-rate compensation system is too dangerous for young farmworkers. Farmworker Justice urges the Department to prohibit the piece-rate payment system for workers under the age of 16.
Farmworker Justice believes that these proposed policy changes are necessary to protect the working conditions and health and safety of farmworkers. Thank you for your time and consideration of these comments.
Director of Immigration and Labor Rights
Director of Occupational and Environmental Health