Federal Legislative Update

Senator Cory Booker (D-NJ) Reintroduces the Protect America’s Children from Toxic Pesticides Act (PACTPA): Senator Booker reintroduced PACTPA, a bill that seeks to increase protections for farmworkers and the public from exposure to pesticides. The legislation would ban several toxic, harmful pesticides and reform the Environmental Protection Agency’s (EPA) process for approving pesticides for sale and use. Read our statement.

Federal Administrative Updates

DOL Publishes Final Rule on AEWR Methodology: DOL issued a final rule on the methodology for the H-2A program’s Adverse Effect Wage Rate (AEWR). The rule maintains the existing AEWR wage methodology for the vast majority of H-2A positions, but it adds a new methodology to protect wages for certain occupations that do not fall within the usual field and livestock job categories. This rule replaces a 2020 Trump Administration rule that was enjoined and ultimately vacated after the UFW and UFW Foundation, represented by Farmworker Justice and WilmerHale, sued to stop the harms it would have caused to farmworker wages. Read our fact sheet.

EPA Proposes Rule on Stronger Pesticide Protection: The EPA announced a proposal to amend federal standards on the application of pesticides. In response to years of farmworker advocacy, EPA in 2015 created the Application Exclusion Zone (AEZ), which prohibits pesticide handlers from applying pesticides when other individuals are within a certain distance. In 2020, the Trump Administration sought to weaken the AEZ protections. FJ joined Earthjustice in filing a lawsuit on behalf of several farmworker advocacy organizations to block the 2020 rule and succeeded. EPA has now announced their intent to largely return to the 2015 AEZ standard that preceded our litigation. Read our statement.

DOL Makes OSHA a Certifying Agency for U and T Visas: On February 13, 2023, DOL Secretary Marty Walsh granted the Occupational Safety and Health Administration (OSHA) the authority to issue certifications in support of U and T visa applications. U and T visas are available to victims of certain crimes and trafficking, but they require certification from a law enforcement agency. OSHA can now protect certain immigrant workers who participate in or report workplace safety issues through the issuance of a visa certification. Read more.

In New Rule, DHS Reportedly Considering H-2 Visa “Grace Period” and Dual Intent: Media reports have provided more detail on the changes that DHS may make in a forthcoming proposed rule geared towards increasing the flexibility of H-2 visas. While unconfirmed by DHS, the media reported three significant potential changes that: (1) would extend the grace period for a worker’s departure and arrival; (2) would allow guestworkers to apply to pursue existing permanent immigration avenues (i.e. green cards) without abandoning their H-2 visa; and (3) would allow workers to begin working immediately once USCIS receives a properly filed petition.

DOL and HHS Announce Partnership to Combat Child Labor: Leaders of the US Departments of Labor and Health and Human Services (HHS) announced on Feb. 27 that they are taking new steps to address exploitative child labor practices, including forming an inter-agency taskforce on “Child Labor Exploitation” and launching a national strategic enforcement initiative from the Wage and Hour Division. As part of that effort, DOL will be “applying further scrutiny to companies who conduct business with employers and staffing agencies that use illegal child labor." Read more.

Litigation Updates

Employers Withdraw Challenge to Colorado Farmworker Law: A group of employers challenging a Colorado state law that would allow farmworkers to meet with key service providers on the farms where they work and live. The employers claimed that this limited grant of temporary access violated their property rights. Colorado Legal Services, represented by Public Justice, Farmworker Justice, and Towards Justice, successfully intervened in the lawsuit to defend farmworker interests. On February 24, shortly after the farmworker intervention, the employer plaintiffs voluntarily withdrew their lawsuit. Read more.

Court Denies Employer Group’s Attempt to Block 2022 H-2A Rule: A federal district judge denied the National Council of Agricultural Employers’ request for a preliminary injunction to block the Biden Administration’s new H-2A visa regulations. NCAE had claimed that DOL had unlawfully withdrawn the Trump-era H-2A regulation and issued the 2022 regulation without following the proper procedures. The case is NCAE v. DOL, No. 1:22-cv-03569 (D.D.C.). 

Federal Appeals Court May Send “Client Employer” Question to California Supreme Court: Farmworker advocates are arguing that a relatively new section of the California labor code entitles their clients to recover unpaid wages from two large companies who relied on tenant farmers to hire farm labor. The 2015 law at issue expanded wage and hour liability to “client employers” and sought to address employment structures designed to evade liability. The Ninth Circuit heard arguments from CRLA Foundation attorneys this month and indicated that they will ask California’s highest court to weigh in on the issue. The case is Luis Morales-Garcia v. Better Produce, Inc., No. 22-55119 (9th Cir.).

DOL Board Rules Against H-2A Applicant Who Failed To List Worksites: DOL’s Board of Alien Labor Certification Appeals (BALCA) upheld the decision of an Office of Foreign Labor Certification officer who denied the H-2A application of an employer who merely listed the counties where work would be performed. The BALCA opinion found that the officer was right to demand more specificity in the worksites and affirmed the denial, noting that “[f]ailing to follow form instructions and consequently submitting an incomplete job order is a valid basis for a deficiency determination . . . .” Read the decision here.