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Historic heat wave highlights the need for farmworker protections

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Wage theft is a huge problem that requires a creative solution, this week  in the war on workers | Today's Workplace

Summer heat is a danger for farmworkers every year, with heat deaths happening steadily. But with climate change and heat waves like the one that hit the Pacific Northwest in recent weeks becoming more frequent, the need for legal protections for farmworkers is becoming more urgent. At least one worker died during that heat wave.

California farmworkers have a right to shade when the temperature reaches 80 degrees (though enforcement remains an issue), and farmworkers are winning legislative victories in the states, including Colorado recently and Washington state, gaining minimum wage and overtime protections. But nationally, farmworkers lack protections and enforcement, and heat is an annual danger. The Pacific Northwest’s record-shattering June heat wave drew renewed attention to that—even as some coverage of agriculture in the heat wave talked entirely about the danger to crops and never even mentioned workers.

The workers picking cherries and blueberries in temperatures over 100 degrees included children as young as 12 and adults in their 70s, with some employers not even supplying water, let alone shade.

“There’s no shade where I work,” a cherry picker in Yakima County, Washington, told Motherboard. “A lot of people who don’t feel well keep working so as not to lose money for lunch or rent. People endure a lot to finish. They give more than they are able to.” Elizabeth Strater, strategic campaigns director for the United Farm Workers of America, told Motherboard’s Lauren Kaori Gurley that “There is a perverse incentive to work as fast as you can not to hydrate to the extent that you’d need bathroom breaks,” because so many workers are paid piece rates.

Workers also often work in heavy clothes to protect themselves from chemicals used on crops, as they do unbelievably grueling, skilled work in dangerous heat. This is already a workplace safety issue that demands national policymaking—and it’s only going to get worse thanks to climate change.

This blog originally appeared at DailyKos on July, 5 2021. Reprinted with permission.

About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and a full-time staff since 2011, currently acting as assistant managing editor.


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How the Covid Land Rush Is Hurting New Farmers

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The pandemic has inspired city dwellers and investors to buy land in rural areas. That’s driving up farmland prices and pushing some beginning farmers out of the market.

Abel Dowden, age 20, grew up on his family’s beef farm in the Missouri Ozarks. He just got married and is ready to start his own farm. Dowden had his eye on a neighboring place but he is a day late and a dollar short. Over the span of the last year, the price of the adjoining property has tripled. Since Dowden can’t afford the new price, the landowner decided to hold on to it until the right buyer comes along.

What caused this rapid spike in land value? Who will the right buyer be?

The data is still being analyzed but already agricultural economists across the country have noticed a marked increase in agricultural land value caused by the Covid-19 pandemic. In this new market, locals looking for their retirement property and out-of-staters looking for some peaceful country living or an easy investment compete with, and often out-compete, new farmers.”When newcomers move in and take that land out of production, they actually threaten rather than boost the rural economy.”

During the pandemic, federal stimulus money has poured into rural communities in the form of small business assistance, farm aid, unemployment benefits and income-based payments. While the money has helped some scrape by this year, it has left others with cash on hand they wouldn’t otherwise have. Levi McDaris, a commercial banker in the Missouri Ozarks, says that in his area many people are turning around and putting that money into land, driving up demand and prices.

At the same time, the uncertainty of Covid-19 prompted investors to seek out stable investments in an otherwise turbulent market. Ag land?—?known for steady, reliable returns?—?has long been a go-to investment for large firms but this last year also saw new people investing in land, says Ray Massey. Massey is an ag economist at the University of Missouri Extension which conducts an annual survey of the ag-land market. Moreover, the Federal Reserve has kept interest rates low to encourage investment, which has made land purchases easier for individuals and investors.

Those individuals are not only rural people. As Covid-19 has redefined the limits of modern work, urban people have reconsidered city living. Nearly 40% of U.S. adults living in urban areas would consider moving to rural areas according to an April 2020 Harris Poll. Rural housing markets around the country have been blown apart by this sudden demand. In parts of rural California, for example, housing prices have increased by an average of 25% since the start of the pandemic. In the small city of Springfield, Missouri, about an hour West of where Dowden lives, housing prices have increased about 11% since May 2020. This demand extended to ag land, especially into what might be called recreational ag land: often hunting grounds or small 40-or-less-acre lots used for lifestyle farming. While the demand has mostly increased within an hour and a half of larger urban areas, this has also pushed up the value of ag land farther out. 

Since people looking for lifestyle or recreational properties ?“are willing to pay more than the agricultural value,” explains Wyatt Fraas, the farm and community assistant director at the Center for Rural Affairs, ?“all the surrounding ag land gets an increase in value.” The phenomenon has pushed up cropland prices across the U.S. in places like IowaOhio, and Missouri.

Not only has the demand for lifestyle properties pushed up the price of ag land, but non-farming people moving into rural areas have also quickened the development of ag land into smaller, lifestyle plots around rural towns. When media outlets hasten to characterize the flight to the country as a revitalization of rural America, they miss this important part of the picture. ?“When newcomers move in and take that land out of production, they actually threaten rather than boost the rural economy,” says Julia Freedgood, co-author of the American Farmland Trust’s Farms Under Threat report.

Small towns afflicted by the real crisis of business and youth-flight can benefit from the arrival of newcomers, but only when the influx does not come at the cost of ?“ag land being split up” and new farmers being driven out of the land market, says Fraas. He explains that while rural towns do need more families?—?for healthy schools, businesses, and communities?—?land developed outside of town is an economic hardship for small towns because it increases demand for services but not tax revenue. Farmland on the other hand, he said, ?“provides a lot of tax income as well as other economic income. Every farm is essentially a small factory that buys lots of goods and services.”

Moreover, in a world flailing in the fight against climate change, low-density rural development is significantly more energy and greenhouse gas intensive than high-density urban core development, Freedgood explains. This is on top of the direct environmental destruction caused by such development, which breaks up animal habitats, damages watersheds and native ecosystems and, ironically, contributes to the spread of infectious disease.

Despite the economic and environmental costs to local communities, the Farms Under Threat report finds that between 2001 and 2016, nearly 7 million acres of farmland were converted to low-density residential (lifestyle) land use. 

And, of course, conversion into housing developments takes ag land out of the market and drives up land prices. The surging price may be good for landowners but it’s ultimately changing who can afford to become a landowner. Abel Dowden’s neighbor saw his property value triple, but this means Dowden, the new farmer, is unlikely to be able to buy his farm. 

Some of the factors driving up farmland prices?—?such as low interest rates and federal stimulus money?—?probably won’t last. The newfound interest in rural living, however, may stick around or even increase. Currently, about 42 million people—mostly in rural America—are without access to broadband internet. Businesses and families alike view poor broadband access as a major detractor of rural living; thus, broadband access is arguably a major factor limiting rural growth. In response, Biden’s American Jobs Plan includes $100 billion for broadband infrastructure. As rural broadband access increases, more people may want to move to rural areas, buy land and build homes, further limiting the availability of affordable farmland. “The future of farming is not farm ownership because the cost of farm ownership is just getting too high.”

Land access is the number one challenge that young farmers and ranchers face, according to the National Young Farmers Coalition, a network of young farmers fighting for the future of agriculture. As traditional farms and ranches continue to struggle with profitability, fewer and fewer retiring farmers are passing their land onto their children. Instead, their land enters the ag-land market, where it is difficult for new farmers to compete with industrial ag operations, investors, and developers. As prices go up, the imbalance of purchasing power intensifies. The Covid-19 uptick in prices and corresponding rise in investment and non-farming purchases is accelerating this long-running trend. Sadly, says McDaris, a banker who often works with farmers on getting loans, ?“the future of farming is not farm ownership because the cost of farm ownership is just getting too high.”

Independent family farms are the ?“key to maintaining a resilient farm sector and healthy rural communities,” reads one of the National Young Farmers Coalition guiding principles. In fact, small-scale farms are vital not only for rural communities but America’s food system at large. The pandemic made this point all too clear as industrial ag produced piles of pig corpses while people waited in line for hours in food bank lines where supplies were running short. The Young Farmers Coalition finds that not only is farmland overwhelmingly concentrated in the hands of older farmers (according to the USDA, the average age of farmers is 57.5), 98% of farmland is owned by white people; it is imperative that new, young, diverse farmers replace aging farmers, not industrial ag behemoths. 

Some states have policies meant to address farmland development and encourage transition to new generations of farmers. These policies can protect agricultural viability and use zoning laws to control low-density sprawl. For instance, under some state programs?—?which are fairly limited in Missouri but more prevalent in other parts of the United States?—?Dowden might be able to sell an agricultural conservation easement on the land in order to make up part of the higher price. This would help him with the purchase now and ensure that the land is not developed even after he is done farming. Some states have also implemented Farm Link programs that connect land seekers with landowners who want their land to stay in agriculture. If such a program was established in Missouri, it might help young farmers like Dowden gain access to farmland.

According to Freedgood, of the American Farmland Trust, there’s a lot of important work to be done on the local level. ?“Good rural planning is incredibly important,” she says. ?“Not just land use planning but comprehensive planning that supports agriculture and rural economies. If done well, not only will it protect the working landscape, it will enhance community resiliency and food security in the face of climate change.”

For now, beginning farmers like Dowden continue to face an uphill battle, only exacerbated by the Covid storm. McDaris, the Ozark banker, reflects?“It’s not that people wanted it to become this way, I think it’s just the unintended consequences of who we are and what we’ve done.”

This blog originally appeared at In These Times on June 14, 2021. Reprinted with permission.

About the Author: Sadie Morris is a former In These Times editorial intern. She is pursuing a bachelor’s degree in Culture and Politics at Georgetown University with a focus on political economy and the environment.


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How the Deep Roots of Farm Labor Solidarity Helped Wisconsin Survive the Pandemic

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When Covid-19 forced Wisconsin to shut down in late March last year, supply shocks to the agricultural industry delivered a staggering blow to family farmers, many of whom have long teetered on the edge of bankruptcy. Decades of consolidation and monopolization have made the industry inflexible to changes in demand brought about by school, restaurant and commercial closures. Processing plants soon bottlenecked with sudden oversupply, forcing farmers around the state to dump millions of gallons of raw milk, destroy crops and euthanize livestock en masse. All the while, over 500,000Wisconsinites faced record-level food insecurity. 

At the same time, on the factory floor waning OSHA regulations and delayed responses by meatpacking companies to adopt Covid-19 guidance (if done at all) left thousands of workers completely unprotected, allowing outbreaks of the virus to tear through processing plants and surrounding rural communities.

For decades, Big Ag has starved out small farms, hastening the decline of rural communities, and worsened working conditions for its labor. This fraught food system, exacerbated by the pandemic, has ignited a new statewide movement of solidarity from farm to factory. Led by family farm unions operating in small towns like Chippewa Falls, labor unions and immigrant rights groups organizing in population centers like Milwaukee, their work builds upon a history of progressive populist organizing in Wisconsin.

At its most basic level, ?“farm-labor solidarity is recognition that workers at all stages of the food chain should be compensated fairly for the work that they’re doing,” says Melanie Bartholf, Political Director for United Food and Commercial Workers (UFCW) Union Local 1473, ?“and that the economy does better when farmers and workers are compensated fairly.” 

For groups like the Wisconsin Farmers Union, a small and mid-sized farm collective with over 2,000 members in rural communities around the state, this unity is essential to goals of carving out an alternative, sustainable model for a cooperative food system. ?“We’re based on the idea that it’s better for 10families to be milking 100 cows than 1 farm milking 1,000 cows. Having small scale agriculture and a healthy agricultural economy that’s built on cooperatives and is democratic, that’s the food system that we’re fighting for out here” says Charlie Mitchell, a journalist and WFU farm-labor solidarity organizer.

“You see farmer power when billions [in federal farm relief] get activated without thinking of farm support,” Mitchell adds. “ But then our brothers and sisters in the slaughterhouse and grocery don’t get a penny of hazard pay to account for the fact that they’re risking their lives to bring us food.” 

In October, condemning the loss of Hero Pay for essential food workers as Covid-19 cases surged across the state, WFU and UFCW joined forces to form a farmer-labor alliance. This alliance, the first and largest of its kind in years, is working to pressure county officials to intervene at meatpacking plants to increase worker testing and PPE access, as well as strengthen workers’ rights to freedom of association and collective bargaining. 

The alliance also marks the first time in its history that UFCW, the largest labor union in the state with over 12,000 members, has come out in full support of farmers’ demands for parity, stronger antitrust enforcement and dairy supply management. 

In Wisconsin, the spirit of this agrarian organizing can be traced back nearly a century. At the height of the Great Depression, when milk prices plummeted to unsustainable lows, thousands of farmers and laid off factory workers enacted a series of milk strikes in pursuit of parity. Led by the Farmers’ Holiday Association and the Wisconsin Cooperative Milk Pool, farmers and their urban allies staged hundreds of pickets along major highways and railroads, assembling crude blockades to intercept milk shipments bound for factories. Months of violent protest, milk-dumping and the bombing of a cheese factory in 1933 succeeded in drawing federal attention to the plight of dairy farmers. Raised prices and a short-lived period of parity followed.

“Organized farmers and organized workers have the same general aim,” reads a 1939 pledge of solidarity penned by the Wisconsin Farmers Union and Wisconsin State Federation of Labor. ?“They both desire to maintain and raise the American Standard of Living. Cooperation between these two most vital forces in American society is essential if we are to realize that goal.”

Mexican-American and Mexican migrant farmworkers, without whom there would be no agricultural industry, have also played a crucial role in the advancement of labor. Organizing against hostile working conditions, housing ?“unfit for human occupancy,” unlivable wages and lack of access to education or medical care, thousands of farmworkers joined together to form Obreros Unidos in 1967, the first sustained attempt at a farmworkers union in the Midwest, and one of the few outside of United Farmworkers in California. With considerable support from local labor groups, churches and community members, as well as the backing of the AFL-CIO, Obreros Unidos succeeded in raising the minimum wage for farmworkers, improved housing conditions and established the Governor’s Council on Migrant Labor. Jesus Salas, the union’s co-founder, would also go on to lead United Migrant Opportunity Services, an organization serving nearly 300,000 migrants in the state.

The 1980’s farm crisis, followed by decades of disastrous trade deals and agricultural policies laid the groundwork for the industrial agricultural takeover that continues to this day. While most dairy farms in the state are still small, family operations, they’re shuttering at rapid rates. Since 2015, over 2,500 have gone out of business, nearly a quarter of the state’s total swallowed by CAFOs. Yet, in the midst of this crisis, when public sector unions infamously came under attack in 2011, farmers once again rallied in support. In a massive display of opposition against Act 10, hundreds of farmers from around the state drove their tractors and combines to Madison for a solidarity tractorcade around Capitol Square, garnering crowds of nearly 85,000, the state’s largest protest to date.

“We pulled together that tractorcade because we were trying to show that the Scott Walker austerity program wasn’t just attacking labor unions, it was attacking all sorts of things in our society, including collective bargaining rights by co-ops,” says John Peck, Executive Director of Family Farm Defenders and an organizer of the tractorcade along with WFU. ?“We were trying to show that farmers and workers actually have this common heritage, organizing together to create unions and co-ops comes out of the same populist tradition.”

Despite the eventual passage of Act 10, and subsequent right-to-work legislation, the fight for labor continues. In February 2016, when an anti-sanctuary city bill in the state legislature posed an attack on immigrant labor, the statewide strike ?“A Day Without Latinx and Immigrants” once again rallied tens of thousands to the Capitol. Organized by Voces de la Frontera, the state’s leading immigrant and migrant workers’ rights group, the strike successfully defeated the bill, in large part due to inroads made with rural communities, and went on to inspire strikes nationwide.

Christine Neumann-Ortiz, founder of Voces, writes of this watershed moment, ?“Two days before the strike, Voces de la Frontera held an emergency meeting with farmers to draft an open letter calling on farmworkers and farmers to support each other by forming skeleton crews to care for the cows while the rest of the workers struck.” In turn, Neumann-Ortiz writes, ?“farmers used their voices to lobby Republican state leaders to defeat the bill.” For Voces, building relationships with groups like the Farmers Union has been essential for expanding their reach into rural districts, tapping into an important constituency capable of influencing their Republican representatives. ?“Farmers understand that immigration is critical to the survival of rural communities and are becoming a key partner in our efforts to advance policies that make our communities more welcoming to immigrants,” writes Neumann-Ortiz.

Through nonpartisan rhetoric appealing instead to shared values, Voces and the Wisconsin Farmers Union are working to draw solidarity between small farm owners and immigrant farmworkers, who make up over half of the dairy industry’s workforce and account for 79 percent of the nation’s milk supply. According to Jacquelyn Kovarik, Voces Communications Director, this approach has seen considerable success. ?“Small farm owners and undocumented laborers have a lot of shared values because both are being taken advantage of by big dairy.”

“Corporate agriculture is in the business of extraction… The things that farmers and laborers do, that’s where the wealth comes from, and that’s forgotten,” echoes Hans Breitenmoser, a second generation dairy farmer from Merrill, Wisconsin. ?“Financially, we as farmers just have a hell of a lot more in common with laborers than we do with the CEO of a multinational conglomerate.”

Last year alone, over $46 billion in federal aid was paid out to farmers (including the annual $10 billion federal farm subsidy), accounting for nearly 40% of their income. Food workers, who account for some of the lowest wages across industries, continue to be among the hardest hit by Covid-19, with over 81,000 positive cases as of January. Routinely failed by the government and exploited by employers, many farmers and food service workers believe farmer-labor solidarity is key to achieving a safer, sustainable and cooperative food system; a system built on fair wages for farmers and workers, and one which supports workers’ rights to organize. 

“This has been a really hard time for progressive politics in Wisconsin. … and a fair amount of divisiveness had been developing in farmers for sure,” says Thomas Quinn, retired director of the Wisconsin Farmers Union. ?“When I first started organizing and farming in the 1980’s, there was a lot more openness to the idea that farmers needed to build solidarity with labor and that the unions were on our side, rather than our opponents.” For Quinn, despite the increasing political division he sees in rural communities, remembering the achievements of solidarity-movements past gives reason to be hopeful. ?“It’s so important to hang onto that history and carry it forward, otherwise it gets lost, and people think it can never happen. But it can, and it has.”

This blog originally appeared at In These Times on January 27, 2021. Reprinted with permission.

About the Author: Hannah Faris is a multimedia journalist based in Chicago and an In These Times editorial intern. She has worked with South Side Weekly, Kindling Group and Kartemquin Films.


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How Decades of Local Activism Led to the Biggest Dam Removal Deal In U.S. History

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“The Klamath River is the center of our traditions, culture and community, and has always been the centerpiece of our way of life,” says Frankie Myers, vice-chairperson for the Yurok Tribe. “We are connected to the salmon in a really deep way, and there is a belief that their existence is our existence.”

The Yurok people have lived in the 15,700 square miles Klamath River Basin, in what is now called Northern California, for millennia. They are among the key organizers in a coalition of Indigenous groups, environmentalists, concerned citizens and commercial fishers that have joined forces in a decades-long movement to Un-dam the Klamath.

The Klamath was once home to the third-largest upstream salmon migrations (or runs) in the United States. Due in large part to the eight dams that were built along the river between the early 1900s and 1962, in what was called the Klamath Project, fish populations have drastically decreased in recent years. In particular spring-run Chinook salmon, which historically showed up in the hundreds of thousands, is on the brink of extinction, with less than 700 fish counted in their 2019 run. An effort is currently underway to designate the fish “as a distinct population and protected under the [U.S.] Endangered Species Act,” according to a report by National Geographic after it was recently discovered that they are a genetically unique species of salmon.

After years of organizing on the part of tribes, environmental groups and other local activists, the states of California and Oregon announced a historic new agreement on November 17 to move forward with the removal of the four dams that block the lower Klamath River. The agreement is between the Yurok and Karuk tribes, as well the electric utility PacifiCorp, which currently owns the four dams, all of which are hydroelectric facilities built without fish passage.

Over the years the Endangered Species Act (ESA) has played a key role in making dam removal a viable reality, and in 2019, the U.S. Bureau of Reclamation and federal wildlife agencies reinitiated an ongoing process of ESA consultation for the Klamath Project. Because the dams were built without fish passage, they do not comply with the ESA’s requirements, and retrofitting them to comply with the act would not be cost-effective for the utility corporation.

In 2010, PacifiCorp and other stakeholders initially created and signed the Klamath Hydroelectric Settlement Agreement (KHSA) and the Klamath Basin Restoration Agreement (KBRA), which together pave a path for removal of the four dams along the lower Klamath River. In 2016, all parties had reached an agreement over dam removal, but that agreement was stalled in July due to a federal regulatory decision. Under the 2020 agreement, however, the states of Oregon and California will take over ownership of the dams during the removal process and are set to apply to remove PacifiCorp from the license in January 2021.

The new dam removal plan hinges on approval by the Federal Energy Regulatory Commission (FERC) and may require a new Environmental Impact Statement (EIS). Craig Tucker, a natural resources policy consultant who has worked on the Klamath Dam removal effort since 2003, says he is confident the current agreement will hold, and dam removal will be underway within a year or two.

Tucker says he anticipates FERC will issue a draft approval order in March 2021, which will then require an analysis under the National Environmental Policy Act (NEPA) and an EIS. However, he hopes that since two EISs’ have already been published for this dam removal project and the utility corporation is on board with the removal agreement, the project could be fast-tracked with a supplemental EIS, and with the NEPA analysis being completed in 2021.

Meyers says he also expects the agreement to hold and dam removal to begin in the next couple of years.

“We have the utmost confidence that this was going to come to fruition,” he says. “I say that because of my personal experience working on all these campaigns, and my experience with protesting and activism, after seeing the other fights around this country… At the end of the day, this is still America, right? And in America corporations get what they want. And at this point what this [PacifiCorp] corporation wants is dam removal. We feel very confident it’s going to happen.”

PacifiCorp says in a November press release that it believes the “important agreement with the states of California and Oregon, and the Yurok and Karuk Tribes… will overcome the remaining obstacles to advance the Klamath Hydroelectric Settlement Agreement and complete the largest dam removal and river restoration project in U.S. history.”

While more than 1,700 dams have been removed in the United States in recent years (90 of them in 2019), the removal of the four Klamath River dams will indeed be the largest dam removal effort in the U.S., as well as the largest salmon restoration project in U.S. history.

As detailed in a recent BBC article by Alexander Matthews, the dam removal and restoration efforts aim to restore 400 stream-miles of habitat for salmon, steelhead trout and other migratory fish. Michael Belchik, the Yurok tribe’s senior fisheries biologist, says in the BBC article that opening up spawning grounds that were previously inaccessible due to the dams will increase genetic diversity and reduce crowding for fish. He also tells BBC that elevated water temperatures—which are a major cause of fish declines—will be reduced as the restoration effort reconnects cold-water springs and tributaries to the larger Klamath River, improving water quality and reducing the risk of toxic algae blooms which have been a major cause for concern along the river. And, cooler water temperatures will help the fish to be resilient in the face of climate change, and free-flowing sediment will help to reduce the habitats for bristle worms that are secondary hosts for C Shasta parasites, which kill salmon, as Belchik explains in the BBC article.

The BBC article also quotes Yurok member Amy Cordalis, according to who the Klamath dam removal and restoration project will be a model for how to approach sustainable river restoration worldwide:

“I think the approach of working together with the company, with states, with tribes, with environmentalists, to reach an agreement that allows these dams to be removed for the tribes and for American citizens to benefit from the restoration of this river in a way that costs less money than it would be to relicense [the dams] – that’s really a model of how you might approach sustainable river restoration across the world,” she says.

Tucker, who has been working on the Klamath dam removal effort since 2003, says a unique set of factors make the restoration of the Klamath River uniquely viable.

“From a biodiversity perspective [the Klamath Basin] is an incredibly valuable place. And, it’s truly restorable in a way that some places aren’t. That’s to say that there are not that many people in the Klamath Basin, there are no real big cities [located there], most of the land is public land, and then you have these permanent stewards of the region that are the tribes, and for those reasons, I think the Klamath has a great chance to really being protected, preserved, restored.”

Guardians of the River

The environmental conservation organization American Rivers, which has been involved with the Klamath dam removal effort for years, recently released the short film “Guardians of the River,” produced by Swiftwater Films. It follows Yurok and Karuk people who live and fish in the Klamath Basin. The 15-minute film details the river’s dwindling health over the last several decades, the toll this has taken on the people who have called the river home for millennia, and their efforts toward renewed food sovereignty.

Dania Rose Colegrove, a member of the Klamath Justice Coalition and Hoopa Tribal member points out in the film that the state of California advises against drinking and swimming in the Klamath River due to the water’s toxicity levels. She says organizing for dam removal is not a choice and adds the 2002 fish kill was the “saddest part” of her life, in the film.

Talking about the obligation of her people to the river in the film, Colegrove says “It’s not because we want to, it’s because we have to.” “It’s an obligation for us to take care of this place, and take care of us.”

Samuel Gensaw, a 26-year-old traditional Yurok fisherman, narrates much of the film. In the film’s opening scene, Gensaw says his “grandpa thought he’d never see the day when he’d catch less than 50 fish when he went fishing.” Now, even with three teams, tribal fisher people are lucky to catch seven.

“Back in the day you did this all year round; you caught fish in the spring, there’s fish in the fall and there’s fish in the summer,” he says in the film. “Nowadays it’s just one time a year that we get a good fish run, and it’s really sad because this fish run is so small there’s not going to be enough fish pulled out of this river to give every tribal member one fish… Without these salmon our way of life is impossible.”

Gensaw is the founder and director of the Ancestral Guard, which is a community organizing network geared toward engaging youth with Yurok cultural values and ancestral knowledge. He has worked as an activist since he was a child, beginning in sixth grade after the local school district shut down the reservation school, forcing native students to travel 45 minutes on a crowded bus to Crescent city for school, where they endured racism from students and teachers. This situation garnered support from the ACLU.

“The ACLU came through and totally tore up that whole system to make the county act right when it comes to the education of Indigenous people,” he says. “They’re still fighting that battle, but it was really empowering to see that and I realized you can actually make a change.”

Gensaw began homeschooling, which provided the chance to connect with his grandmothers and tribal elders. By 10th grade, Gensaw became involved with the Undam the Klamath campaign after meeting Craig Tucker. Over the years he became increasingly interested in getting youth involved with preserving Yurok traditions, and helping them develop connections to the “old school rules” of being on the river and how to “think right” when fishing.

“I spent a lot of time with my grandmothers and luckily I’ve had a lot of elders [who are my] mentors like Archie Thompson, who was one of the last fluent speakers of our [Yurok] language,” he says.

The formation of the Ancestral Guard began with teaching youth about traditional fishing, from boating to treating the fish to making sure elders were fed.

“We did that for about three years until the salmon run population started dwindling,” he says, which was around 2010. “Then we started focusing on activism, asking ‘What can we really do to protect this river?’”

This led to getting more native youth involved with the Undam the Klamath campaign, among other movements to protect the river’s ecosystem as well as Indigenous rights to access the river.

“We fight so hard because we want a whole generation to grow up on a dam-free river,” he says. “We want them to not have to go through the same struggles and traumas that we have had, growing up on a sick river. It takes a lot out of you when you’re taught this place will take care of you for the rest of your life, and then all of a sudden it’s sick. Now it needs you to take care of it. [The river] is like a family member that we have, and the connection to the river is more than a connection. It’s a keystone piece of our existence.”

Gensaw says he never wanted to be an activist but has had to organize out of necessity.

“I never wanted to be involved in this process,” he says. “All I want to do is fish and feed my family. And that’s the same mentality of every fisherman out there. We just want to be able to fish or be able to provide for our families. And we want all the healthy opportunities that come along with living with a healthy river.”

Meyers, vice-chair of the Yurok, has been at the forefront of the effort organizing for dam removal for two decades. He points out that while the dams have destroyed aspects of the Indigenous way of life—contributing to gravely depleted fish populations and making it unsafe to bathe, drink and swim in a river that has been home since time immemorial—the Yurok haven’t even benefited from the electricity generated by the dams.

“For 50 years, the reservations here didn’t have electricity,” he says. “For the vast majority of the time the dams have been destroying our river and our way of life, but we haven’t even been able to get the luxury of electricity.”

He says his own parents, who live in a village along the river basin, just got electricity about five years ago, only because the tribe installed it.

Organizing ‘Undam the Klamath’

In 2002, a devastating event took place on the Klamath, known as the fish kill. Tens of thousands of dead salmon, steelhead and other migratory fish floated on the water. They were killed upon returning to the river to spawn, by disease related to high water temperatures that were likely caused by the culmination of steady habitat degradation created by the dams, water pulled from the river for upstream irrigation of farms and ranches during a drought year, timber sales along stream banks and groundwater withdrawals. The official estimate of mortality by the California Department of Fish and Game was around 34,000 fish, however, they have since reported that that number may have been significantly underestimated, and some estimates are upwards of 70,000.

Meyers says the fish kill took almost 80,000 of the 2002 fall salmon run—and the event likely could have been avoided had the regulators listened to the tribe.

“In 2001 we’d made a case to the Bureau of Reclamation about the importance of river flows to the river, and the importance of adequate flows to species viability,” he says. The bureau at first followed the tribe’s recommendations, releasing water back into the river, but the move caused economic distress for irrigators upstream. In 2002, the Bureau of Reclamation’s policy swung in the opposite direction.

“They augmented our river flows to beyond what we had told them would be catastrophic, and it was catastrophic in that year [2002].”

The fish kill was a call to action for many Indigenous groups in the Klamath Basin.

“It really became clear that we were never going to be able to get our salmon to return [to] any subsistent amount, as long as the dams were [there],” he says. “They cause too many negative impacts to water quality and there is no other way to mitigate that.”

Meyers notes that Indigenous people are not new to activism and organizing, as they’ve had to fight for centuries for most of the rights they have today.

“We had the fish wars in the 60s and 70s; we had the Red Cap War in the 1850s,” he says. “We’ve always been on the river and we’ve always fought for our way of life, we’ve always fought for our salmon and our ability to catch salmon, but it wasn’t until the 2002 fish kill that it became very, very apparent to us that dam removals would have to be necessary for us to continue our way of life. So we began the Undam the Klamath campaign soon after that.”

“We’ve been neighbors with Karuk and Hoopa people for millennia, since time immemorial, so there is some really deep-seated friction between the tribes that play out in all kinds of ways,” he says. “There was this animosity at times between the tribes, but that all was put aside after the fish kill. It was collectively decided… that our past fighting had to be put aside. Whatever problems we had with each other and our governments had to be put aside. This was about our survival as a species here on earth. That night at the river bar, it was all tribal people from the Klamath Basin, and regardless of tribal affiliation, we all started working together because we knew we were in a dire situation. We saw the terrible fish kill together.”

Meyers says the groups also realized the fight ahead would be a long one that would require a systematic shift involving massive hurdles, involving huge corporations and the overarching mentality of resource extraction and the industrial revolution.

“We knew this was going to take more than just consultation, this was going to take more than just government to government negotiations,” he says. “We knew the fight ahead of us was massive, but it was a decision that was made collectively, for the benefit of future generations. This was the fight we had to take up.”

Environmental groups as well as fisheries joined the effort, and over time the coalition-built momentum.

“The years after that really saw a collection of folks within the basin coming together and wanting to work on the solution for all of the communities in the basin,” Meyers says.

In 2006 PacifiCorp’s 50-year license to operate the dams expired, and since then the company has relied on annual licenses. Around 2008, the coalition began to restructure its efforts. They raised funds to hire a reputable firm to do a cost-benefit analysis of dam removal, with the aim to expand the narrative around dam removal from being centered solely on the tribes toward focusing on the financial, fiduciary responsibility of the corporation that owned the dams.

“We changed the message and we fine-tuned it,” Meyers says. “One of the big turning points for the campaign is when [the cost-benefit analysis] came out and we were actually able to show the corporation that at that point [dam removal] was in their financial interest. It sparked a whole other tone for the campaign, where this was not just about tribes, but now this was about the financial and the fiduciary responsibility of the corporation to make sure that their shareholders are getting their best possible return.”

As the Undam the Klamath coalition was able to push the conversation to include a financial and corporate structure debate, Meyers says they began to solidify partnerships and support from within the state governments of California and Oregon.

It has indeed been a long fight. In 2010, Klamath Basin stakeholders, including farmers from the upper basin and fishers from the lower basin, signed two agreements (KBRA and KHSA). In 2014, stakeholders signed the Upper Klamath Basin Comprehensive Agreement(UKBCA). Members of the California and Oregon delegations introduced legislation to Congress hoping to advance the Klamath agreements, but the 2015 U.S. Congress closed without authorizing them. The involved parties amended the KHSA and the 2016 Klamath Power and Facilities Agreement was created. After a federal regulatory decision dismantled that agreement, the states of Oregon and California resolved to make dam removal happen, agreeing to take on liability for the removal process in what is the current dam removal agreement.

“Hats off to Oregon and California for showing some true leadership at a governmental level,” Meyers says.

Tucker says that a coalescence of factors was necessary in order for this campaign to succeed.

“The activism piece is my favorite piece, and it’s the most exciting, sexy piece, but it only works coupled with legal strategy and good science and good policy advocacy,” he says. “We had all of that together. I would make the case that you don’t win by grassroots alone; you don’t win by direct action alone. You have to have these other pieces running in parallel. And that’s something we’ve had, and we’ve managed that because, for one, the tribes have the capacity to bring all of those pieces to the table. And we [have been] very good at coalition-building.”

Tucker says that the partnership between the tribes with commercial salmon fishers and environmental groups has been key.

“That sort of enviro- tribal-labor trinity was one of the winning elements of the campaign,” he says. Tucker notes that it wasn’t so long ago that Indians and commercial fishers were engaged in gunfights along the Klamath over fishing rights at the mouth of the Klamath.

“Commercial salmon fishers were very powerful allies in this battle,” he says. “I was worried that it would be hard to get commercial salmon, fishers, and Indians to work together well but it worked out wonderfully.”

He says the environmental groups involved in the Klamath effort, like American Rivers, Trout Unlimited and California Trout, contributed their prior experience in dam removal as well as nationwide advocacy capabilities.

“These are groups that have a lot of experience removing dams all over the country,” he says. “They brought a lot of that FERC expertise to the table, and helped us raise money. And they have nationwide memberships that we could activate to write letters and petitions.”

Another ingredient in the recipe that has made the Klamath effort successful, he says, is strong leadership.

“We just had some individuals, Frankie Myers being one of them, whose leadership skills and charisma were able to develop meaningful relationships between individuals leading these organizations, and the different constituencies. You have to have some really capable leaders to make stuff happen, and we’ve been blessed with very capable leaders.”

Meyers says the Klamath dam removal agreement marks a significant shift in policy and says the tribes alone could not have brought it about.

“I don’t think any one group or agency has the capacity to get something like this done,” he says. “It really did take a collaborative effort, working with some strategic partners in the NGO world, partners in the environmental conservation world, and also having really strong partners at the state level.”

This article was produced by Local Peace Economy, a project of the Independent Media Institute. Reprinted with permission.

About the Author: April M. Short is an editor, journalist and documentary editor and producer. She is a writing fellow at Local Peace Economy, a project of the Independent Media Institute. Previously, she served as a managing editor at AlterNet as well as an award-winning senior staff writer for Santa Cruz, California’s weekly newspaper. Her work has been published with the San Francisco Chronicle, In These Times, Salon and many others.


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HOW FARMWORKERS IN MICHIGAN ARE FIGHTING FOR LABOR RIGHTS AND RESPECT

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On December 6, 2020, a federal judge heard arguments on a motion to dismiss in Reyes-Trujillo v. Four Star Greenhouse, a case brought by a group of farmworkers alleging wage and hour violations against the greenhouse company where they worked. The case illustrates why a strong Fair Labor Standards Act (FLSA) joint employment standard is critical to raising labor standards in the H-2A temporary agricultural visa program and providing H-2A farmworkers with a meaningful remedy for labor violations.

The plaintiffs, H-2A agricultural visa holders from México, worked for Four Star Greenhouse, a Michigan corporation that cultivates and sells plants and finished crops. Four Star engaged a farm labor contractor to recruit its workers through the H-2A visa program, which allows employers to recruit foreign nationals to the United States to work in temporary agricultural jobs.

The farm labor contractor acted as the plaintiffs’ employer by applying for their H-2A visas, transporting them to the United States, arranging for them to work at Four Star, and paying them. However, the plaintiffs worked at Four Star’s facility, under Four Star’s supervision, and for Four Star’s benefit. Four Star also arranged for their hire and paid the farm labor contractor a rate for their labor that was based on the plaintiffs’ hourly wage and hours worked.

The farmworkers allege that, while working at Four Star, they endured egregious labor violations, including not being paid for all hours worked and having their work checks bounce. The plaintiffs complained to both Four Star and the farm labor contractor that they had not been paid, after which the contractor allegedly retaliated by orchestrating the arrest and deportation of some of the plaintiffs by federal immigrant agents.

The plaintiffs, represented by the Michigan Immigrant Rights Center, Farmworker Legal Services, and Centro de Los Derechos del Migrante, sued Four Star for violations of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Act (AWPA) based on the wage violations and retaliation they endured.

Four Star filed a motion to dismiss the case, arguing, among other things, that it was not the plaintiffs’ employer so was not responsible under the FLSA or the AWPA.

In NELP’s amicus brief supporting the plaintiffs’ opposition to the motion to dismiss, NELP argues that Congress intended for the FLSA and the AWPA to expand accountability for labor violations to companies that insert contractors between themselves and their laborers while maintaining the economic power to prevent FLSA and AWPA violations.

The definition of “employ” in the FLSA and the AWPA—which includes “to suffer or permit to work”—is the broadest definition of employment used in a law. It derives from state child labor laws, which used the “suffer or permit to work” language to reach businesses that used middlemen to illegally hire and supervise children.   

Given this broad definition, it is clear that Congress intended both the FLSA and AWPA to cover businesses that allow work to be done for their benefit and have the power to prevent wage and hour abuses, even if they disclaim responsibility as an employer.  Because Four Star had the power to know about and prevent the egregious violations that the plaintiffs endured, it should be considered the plaintiffs’ employer under the FLSA and AWPA. 

Because Four Star had the power to know about and prevent the egregious violations that the plaintiffs endured, it should be considered the plaintiffs’ employer under the FLSA and AWPA. 

Furthermore, there is endemic exploitation in the H-2A visa program, and this exploitation cannot be curbed unless companies that hire H-2A farmworkers through farm labor contractors are held accountable. Coming from homelands with few job opportunities, H-2A workers—most of whom come from México—often arrive in the United States in serious debt, having paid significant fees and travel costs for the opportunity to work in the United States.  

Companies like Four Star that use farm labor contractors to recruit, transport, and pay H-2A migrant workers exacerbate the workers’ vulnerability to exploitation.  Labor brokers like the farm labor contractor in this case traffic in foreign workers whom they hire out to a variety of different employers.   

The workers are dependent on the farm labor contractors for their housing, food and transportation and on the agricultural operations like Four Star for their jobs and livelihood.  Many farm labor contractors have few assets, which means workers cannot obtain legal recourse from them for violations of their rights. Meanwhile the agricultural operations can attempt to avoid responsibility for their migrant workers’ exploitation by pointing the finger at the farm labor contractor. 

Meanwhile the agricultural operations can attempt to avoid responsibility for their migrant workers’ exploitation by pointing the finger at the farm labor contractor. 

This attempt to deflect responsibility is precisely what is happening in the Four Star case. Holding farm operators like Four Star accountable to their subcontracted workers as an employer will improve FLSA and AWPA compliance in an industry with rampant worker abuse.  

It will incentivize farm operators to hire H-2A visa farmworkers directly, or to choose farm labor contractors with strong compliance records and to set up procedures that detect their contractors’ unlawful labor practices. And it will increase workers’ chances of obtaining a meaningful remedy for violations of their rights.

This blog originally appeared at NELP on December 16, 2020. Reprinted with permission.

About the Author: Laura Padin joined NELP in 2018 as a senior staff attorney for the Work Structures Portfolio.


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Will the Supreme Court Overrule Farmworker Union Rights?

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Not long before Donald Trump’s election in 2016, the Pacific Legal Foundation filed suit against California’s farmworker access rule in federal court on behalf of two companies—Cedar Point Nursery in Siskiyou County and the Fowler Packing Company in Fresno. The foundation is a conservative libertarian group that holds property rights sacred and campaigns against racial equity. It fought hard for the appointment of Amy Coney Barrett to the high court.

The access regulation, which took effect after the passage of the Agricultural Labor Relations Act in 1975, allows union organizers to come onto a grower’s property in the morning before work to talk with workers. According to the labor board’s handbook, “The access regulations of the Agricultural Labor Relations Board are meant to insure that farm workers, who often may be contacted only at their work place, have an opportunity to be informed with minimal interruption of working activities.”

The board requires that the union give notice to the employer before taking access, and that organizers not disrupt work. They can talk only for an hour before and after work and during lunch, and can take access for only a total of 120 days during a year.

Growers have always hated the access rule, and many at first refused to obey. Former United Farm Workers organizer Fred Ross Jr. remembers being arrested several times in Santa Maria for taking access. “This was all about power and who had it,” he says. “Growers had it all, and their workers none. They wanted to dominate. For them, workers didn’t even have the right to talk.”

The suit filed by the PLF, Cedar Point Nursery v. Hassid, attracted more than the predictable support of the California and American Farm Bureaus. Amicus briefs came from a host of right-wing legal bodies, including the Mountain States and Southeastern Legal Foundations, the Pelican and Cato institutes, and even the Republican attorneys general of Oklahoma, Arizona, Arkansas, Kentucky, Missouri, Nebraska, and Texas. The company brief conjured up visions of “stampedes of third-party organizers” and warned, “If such a rule proliferates, property owners throughout much of the nation will see their rights greatly diminished as governments increasingly sanction invasions of their property.”

POLITICAL ATMOSPHERE

Had the political atmosphere in the country not changed in the 40 years since the regulation has been in effect, the suit might never have been filed at all. Agribusiness challenged the access rule from its inception and went all the way to the California Supreme Court, where the growers lost in 1976. In the last decade, however, visions of a liberal U.S. Supreme Court evaporated in the final years of the Obama administration, and Trump’s election led to the appointment of three right-wing justices, giving the court a 6-3 conservative majority.

When the U.S. Supreme Court agreed on Nov. 13 to hear the growers’ appeal from their loss at the U.S. Court of Appeals, many legal observers became concerned. “State court decisions over state issues used to be respected by the U.S. Supreme Court,” says Jerry Cohen, who helped write the law as the legal director for the UFW. “States’ rights used to be a Republican issue. Now the end product is all that matters.”

That end product is a continued erosion of power for farmworker unions. “Without the rule the union seems to workers like it’s not legitimate, and there really is no right to talk,” Ross says. “Losing it reinforces the growers’ power and control. It’s one more blow to the right to organize.”

The mundane genesis of the current suit was a short strike in Dorris, near the Oregon border, where hundreds of farmworkers migrate from Southern California every year to trim young strawberry plants. In 2015, according to one worker, Jessica Rodriguez, the company paid low wages, had dirty bathrooms and harassed and intimidated workers. They called the United Farm Workers, which sent organizers and filed under the access rule to talk with them on the property. The strike lasted for just a day. At Fowler Packing the union filed for access to talk with an unrelated group of workers, and the company simply refused to let organizers onto the property.

A VITAL TOOL

Over the years the access rule became a valuable tool for organizing workers. Jerry Cohen remembers his discussions with UFW founder Cesar Chavez, during negotiations with then-Gov. Jerry Brown, who signed the law during his first term in 1975. “Cesar told us to get things that were practical, that could help workers organize,” he recalls. “Where workers are together it’s easier for the union to talk with them.”

The access regulation came into effect at a time when the UFW was strong. The balance of power between workers and growers had shifted, and by the early 1980s more than 40,000 farmworkers had union contracts. To Eliseo Medina, who grew up in a farmworker family and became a leading organizer, “The rule was a very clear example that growers were not all-powerful. It was a huge change. People saw organizers coming onto the properties, and could have a conversation at work about their future. It gave people confidence that change was possible.”

In 1996, when a huge campaign began to organize the strawberry industry in Watsonville, organizers visited picking crews in dozens of fields. They taped butcher paper on the walls of the Porta Potties, and held meetings where strawberry workers wrote down their demands for raising some of the lowest wages in agriculture, for health benefits and an end to discrimination in hiring. Then in field meetings they planned marches to the company offices, where the demands were announced.

In 2015 the access rule was used in McFarland in the San Joaquin Valley, where workers angry over a wage cut went on strike. They called in UFW organizers, who used meetings in the fields during lunch and after work to collect signatures on an election petition. After workers voted overwhelmingly for the union, the blueberry pickers chose a ranch committee and eventually negotiated a contract with Gourmet Trading.

How a Labor Law Evened the Balance of Power in California’s Fields

In the winter of 1976, a year after the Agricultural Labor Relations Act took effect, lettuce cutters at George Arakelian Farms Inc. began organizing a union. The men lived in Mexicali, Mexico, just south of California’s Imperial Valley. Every day they left home at 2 a.m. and walked to the border. After crossing it, the company labor contractor put them into cars. As each clunker was filled, it took off for the Palo Verde Valley, a two-hour drive across the desert.

Union organizers also met the workers at the border and followed the cars. When they all arrived at the fields, however, the crews couldn’t immediately start work. In the winter, water freezes inside the lettuce. If a cutter grabs a head to harvest it, the ice cuts into the leaves and they wilt. Everyone has to wait for the ice to melt, when work can start.

Next to the fields, workers lit fires in 55-gallon drums. In those moments when they stood warming their hands and talking with the organizers, the union at Arakelian Farms began to take form. The laborers asked about the benefit plans, their rights under the new labor law and when they might be able to vote the union in. They set up a ranch committee to make decisions and convince the unconvinced.

When the ice finally melted, they began to cut, almost running down the rows with their knives. Packers followed, tossing boxes of lettuce onto trucks. No one took lunch. When the company filled its daily order, workers jumped into their cars and drove back to the border. They walked home with just with enough time to eat, say hi to their kids, catch a few hours’ sleep, and then wake up again and leave at 2.

Organizing their union this way was possible because of the access regulation, formulated by the Agricultural Labor Relations Board. The regulation allowed the organizers to come onto Arakelian’s property in the morning before work to talk with the lettuce cutters. After a few weeks of field meetings, workers and organizers filed a petition for an election, which the union won 139-12.

Like many growers, however, Arakelian refused to negotiate a contract. It took nearly 10 years before the California Supreme Court found Arakelian had violated its obligation to bargain with its workers. Other parts of the law had to be changed to solve that problem, and George Arakelian Farms is no longer in business. The workers have moved on. But from the beginning, the access rule was the tool they, and others like them, used to help even the balance of power with the growers.

When Pacific Legal Foundation argued its case in 2017before the U.S. Court of Appeals for the Ninth Circuit, where it ultimately lost, its attorney Wen Fa declared, “The growers have no problem in the union talking with workers. It’s where they talk with the workers. … [There are] plenty of alternative means for the union to talk with workers … All the workers [at Cedar Point Nursery and Fowler Packing Company] live in houses or hotels. Many have cellphones.”

The ALRA had recognized, however, that it’s harder for farmworkers to organize than for other workers, and set up a much quicker process for gaining union recognition than the National Labor Relations Act did for other workers in 1936. Because farmworkers work only for a season, which can last just weeks, union representation elections take place a week after workers petition for them, and within just 48 hours if there’s a strike.

Growers are required to furnish a list of workers with addresses. “Those lists are notoriously bad, though,” Medina laughs. Most Cedar Point workers actually live hundreds of miles from their seasonal jobs. Addresses in Mexico are very hard to find, and workers on this side of the border often live in isolated colonias scattered over a huge geographical area. “By winning access it was easier to get their addresses so we could visit them, especially those who were afraid to talk in front of the foreman,” Ross explains.

The difficulty of reaching workers outside of work is even greater for a growing segment of the farm labor workforce— those workers brought to the U.S. under temporary H-2A visas. In 2019 the U.S. Department of Labor allowed California growers to fill 23,321 jobs with these contract laborers. “H-2A workers would be even more impacted by losing the access rule,” Medina charges. “They don’t have the legal right to organize — even undocumented workers have more rights than H-2A workers. They’re living in barracks under the growers’ 24-hour control. In Delano growers are taking over whole motels and making them into labor camps.”

The union, however, has used the access rule less frequently over the years. In her defense of it, ALRB chairwoman Victoria Hassid noted that it filed for access at only 62 of the 16,000 agricultural employers in California in 2015. “There is no indication,” she wrote, “that the access regulation poses a significant problem for California farms … petitioners have not actually alleged any negative economic impact on them (or anyone else) resulting from the regulation.”

HISTORY OF RACISM

Pacific Legal Foundation’s Fa made the growers’ root argument in response: “The Constitution forbids government from forcing property owners to allow unwanted strangers onto their property, and there is no exception for union activists.”

In an interview with this author, Fa claimed that growers’ economic losses growing out of the access rule could be “significant,” but couldn’t say specifically what they are. “This case is about property rights,” he said. In his winning defense of the access rule before the U.S. Court of Appeals, Matthew Weiss, deputy attorney general for the ALRB, noted that the effort to knock out the rule simply “privileges private property interests over all others.”

UFW general counsel Mario Martinez says the effort to knock out the access rule is further evidence of a history of racism toward farmworkers.

“The federal government has excluded farmworkers from all labor law protections under the National Labor Relations Act for 85 years,” he charges. “In light of this racially discriminatory exclusion, California granted to agricultural workers important labor protections to balance the historical imbalance of power between farmworkers and growers. A court review of California’s legislation appears to be another attempt to unfairly discriminate.”

The U.S. Supreme Court plans to hear arguments in the case early next year and will probably rule by July.

This blog originally appeared at Labor Notes on December 2, 2020. Reprinted with permission.

About the Author: David Bacon is a journalist and photographer covering labor, immigration and the impact of the global economy on workers.


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Groups Petition OSHA to Issue Heat Standard

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Peggy Frank, a 63-year-old California postal worker — and also a mother and grandmother — died last week while working her usual route in unusually hot weather. Frank’s heat-related death was not a freak occurrence, nor was it unusual.

“An average of more than 2.2 million workers in the agriculture or construction industries worked in extreme heat each day,” according to according to a report released yesterday by Public Citizen, in support of a petition by more than 130 organizations for an OSHA heat standard.  High heat — and especially working in high heat — can cause serious heat-related illnesses and death. It can also worsen other conditions such as heart disease and asthma.

The report cites the Bureau of Labor Statistics which concludes that “exposure to excessive environmental heat stress killed 783 U.S. workers and seriously injured 69,374 workers from 1992 through 2016,” and these numbers are probably significantly underestimated because many heat-related deaths are registered as heart attacks. Construction workers and farm workers are the occupations most at risk.

Although it seems hard to believe, almost 50 years after OSHA was created, the agency still has no occupational heat standard. High heat has been plaguing workers for a long, long time — pretty much since God said “Let there be light.” We’ve known about the hazards of heat stroke and how to prevent them for a long time as well.

And, of course, the problem has gotten much worse since the beginning of time. The groups petitioning OSHA — which include Public Citizen, Farmworker Justice, Interfaith Worker Justice, the Natural Resources Defense Council, United Farm Workers, United Food and Commercial Workers Union and several other labor unions —  tied the need for an OSHA heat standard to global warming which is significantly increasing the risk to workers. The petition noted that

Global warming is resulting in more frequent days of extreme heat, and record-breaking summers are now becoming the norm. 2017 was the second-hottest year on record, surpassed only by 2016. Indeed, 17 of the 18 hottest years on record have occurred since 2001…. Record-setting years will be common in the coming decades, as temperatures are projected to increase by 2.5°F (1.4°C) for the period 2021–2050 relative to 1976–2005 even if we aggressively reduce greenhouse gas pollution worldwide.

Groups Petition OSHA For A Heat Standard

Yesterday, more than 130 organizations announced a petition to OSHA for a heat standard that would protect workers from the hazards of high heat.  Joining the press conference were former OSHA Directors Dr. Eula Bingham and Dr. David Michaels as well as former California/OSHA Director Ellen Widess. The press conference, which included the passionate statement of a man whose brother died of heat exposure, can be heard here.

Federal OSHA, which concluded that extreme heat was a factor in the deaths of at least six workers in 2017, has been concerned about the problem for many years. The agency launched a national heat education campaign in 2012, following successful efforts to prevent heat-related deaths among workers cleaning up the Deepwater Horizon oil spill on the Gulf of Mexico.  OSHA borrowed CalOSHA’s  their “Water, Rest, Shade” campaign and developed a cell-phone heat app, that would analyze the hazards of heat for workers in their geographical area, and recommend measures to protect themselves. (Available from the Apple Store or from Google Play.)  OSHA also increased enforcement under its General Duty Clause, which the agency uses when there is no standard. But, according to former OSHA head David Michaels, the Obama administration declined to launch rulemaking for a heat standard due to lack of time and resources while working on the silica, beryllium and other OSHA standards issued during the last administration.

Three OSHA state-plan states — CaliforniaWashington, and Minnesota (indoor) — have heat standards, leaving 130 million workers in the rest of the country who lack the protections of a national OSHA heat standard. The military also has strict heat standards and in 2016, the National Institute for Occupational Safety and Health (NIOSH)  issued the third version of its criteria for a recommended heat standard “which includes the following elements: heat stress threshold, rest breaks, hydration, shade, heat acclimatization plan, PPE, exposure monitoring, hazard notification, worker training, medical monitoring, injury surveillance, and recordkeeping.”

The report and petition argue that federal OSHA’s current efforts and voluntary activities are not enough. The report points out that an OSHA analysis of heat-related fatality cases show that “17 of 23 fatalities (74 percent) involved workers who were in their first three days on the job, and eight (35 percent) victims were on the very first day of work,” because employer did not follow industry recommendations to allow workers to acclimatize, or get used to the heat for a few days before heavy work.

Congresswoman Judy Chu (D-CA), who spoke at the press conference,  promised to introduce legislation that would require OSHA to issue a heat standard.

The petition outlined a number of elements of an OSHA heat standard, which would reqiure employers to:

  1. Provide mandatory rest breaks with increased frequency in times of extreme heat and significant exertion.
  2. Provide access to shaded and otherwise cool conditions for employees to rest during breaks.
  3. Provide personal protective equipment, such as water-cooled and air-cooled garments.
  4. Make provisions for adequate hydration.
  5. Implement heat acclimatization plans to help new workers safely adjust to hot conditions.
  6. Regularly monitor both the environmental heat load and employees’ metabolic heat loads during hot conditions.
  7. Medically monitor at-risk employees.
  8. Notify employees of heat stress hazards.
  9. Institute a heat-alert plan outlining procedures to follow when heat waves are forecast.
  10. Train workers on heat stress risks and preventive measures.
  11. Maintain and report records relating to this standard.
  12. Institute whistleblower protection programs to ensure that employees who witness violations of the heat stress safety standard are free to speak up.

This blog was originally published at Confined Space on July 18, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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Wendy’s refuses to join program protecting farm workers from sexual abuse

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When Silvia Perez came to Immokalee, Florida from Guatemala in 1993, there was one profession that made sense: working in the fields.

“Tomato-picking is the biggest industry in Florida, and you find out about it right when you arrive,” she said. “It’s bigger than textiles or the restaurant business.”

Perez got a job on a farm in Immokalee, where she was one of five women on a farm saturated with men; she made friends with two other women at work and they stuck together. Before long, their male supervisor began following them around while they worked. One day, he compared the tightness of their clothing and encouraged Perez to wear tighter shirts and more fashionable clothes.

Perez dealt with it. With two kids to feed and minimal fluency in English, she felt that tomato picking was the best option for her in her new home.

Then, in 2008, her supervisor touched her breasts.

“He asked me if they are real or fake,” she recalled. “I was so angry.”

She remembered the incident as she protested on the streets of New York City for the past five days in support of worker protections.

Worker protections, for Perez, are more than a lofty ideal; they are actively enforced by the Fair Food Program (FFP), launched by the Coalition of Immolakee Workers(CIW) in 2011. The FFP creates a partnership between farm workers, Florida tomato growers, and participating retail buyers to enforce fair wages, worker safety, and other basic protections for farm workers through a three-pronged model: it includes worker-to-worker education sessions about worker rights that are held on the farm and on the clock, it adds a premium to the price of tomatoes that becomes a direct bonus for the tomato pickers, and it enlists the help of the third-party Fair Food Standards Council, which conducts regular audits and carries out ongoing complaint investigation and resolution.

Fast food restaurants like McDonald’s, Burger King, Subway, Taco Bell, KFC, and Chipotle have all signed on to the FFP, which means they only purchase their vegetables from farms with these protections. But Wendy’s refuses to participate. That’s what brought Perez to New York, to join the CIW in their fast and protest against the fast food chain’s refusal to join.

On Thursday, outside the Manhattan hedge fund offices of Nelson Peltz, Wendy’s largest shareholder and chair of its Board of Directors, Perez made her voice heard.

“I am here as a mother to break the silence and to end the abuse that exists where Wendy’s buys their tomatoes,” Perez said. “We’re demonstrating and we’re being joined by students, by thousands of people. And they’re on our side. They’re listening to us. They come, they show up. We hope that Wendy’s will listen. If not, we will keep showing up.”

Denying dignity to farm workers

When Perez first faced sexual assault at work, she didn’t have many options. There was no union to report to, and, throughout the 2000s, workers’ rights in Florida were quickly disappearing as then-Gov. Jeb Bush (R) dismantled the state’s Department of Labor.

Her experience was nothing new. Farm workers in the United States have long faced sexual abuse, rape, and harassment in the fields — a problem exacerbated by the fact that many of the workers are undocumented immigrants who are more easily taken advantage of by individuals in power.

So, Perez continued to put up with it. Until 2008, when she heard about a solution in the form of the Coalition of Immokalee Workers, a grassroots organization launched in 1993 that advocates for worker justice through community organizing. In 2011, CIW started the Fair Food Program.

From the fields, Perez noticed improvements as corporations started signing onto the FFP. Water, bathrooms, and shade became available to her and her colleagues. Her pay increased. There was a system to report problems, including a 24-hour hotline that she and other pickers could call from anywhere. For the first time, she felt like she had a voice at work.

“If someone on the field had a headache, they could actually ask for a break,” Perez told ThinkProgress.

To those who have never worked in the fields, these changes may seem minor. However, they’re important enough that Perez worries about farm workers who aren’t protected by the FFP. She’s heard stories from pickers who have witnessed sexual abuse and wage theft on non-FFP-protected farms. She was horrified to read a 2014 Los Angeles Times exposé of human trafficking circles run on the Bioparques de Occidente farm in Mexico.

Perez and the rest of the CIW said their dignity should be at the center of Wendy’s transactions.

Laura Espinoza, director of the Fair Food Standards Council, the third-party organization that oversees the FFP, agreed. She called the FFP an all-around beneficial situation: buyers get transparency from their supply chain, growers oversee safe, secure workplaces, turnover among workers on farms decreases, and tomato pickers like Perez are safe at their jobs.

Wendy’s isn’t alone. Although the FFP has seen growth — since 2011, it’s expanded to include seven states, three crops, and continues to get support from the fast food industry — there’s been a steady increase in U.S. buyers sourcing tomatoes from Mexico, said Jennifer Bond, an agricultural economist at the U.S. Department of Agriculture.

It’s problematic, as the success of the FFP hinges on buyers joining. With a surplus of farms that provide cheaper — and perhaps, as Wendy’s claims, riper — tomatoes, there is a strong financial incentive for companies like Wendy’s not to sign on to an agreement that promotes human rights.

“We at the Council are able to stop abuses because we go out to the farms and say, ‘If this doesn’t stop, you will not be able to sell your produce to our participating buyers.’ That’s what Wendy’s is denying to farm workers,” Espinoza said.

She cited a 2017 lawsuit in which a female farm worker at Favorite Farms in Tampa, Florida was sexually harassed and raped by her supervisor. When she reported the incidents, she was suspended, then fired. The U.S. Equal Employment Opportunity Commission (EEOC) sued the farm and won the lawsuit, but Espinoza said that didn’t provide enough long-term protection for the workers on that farm.

“With the FFP, if a farm worker or grower is found guilty of sexual assault or retaliation, they are banned from all FFP-participating farms,” she said. “But that individual can work at Wendy’s. Because they’re not enforcing these basic human rights.”

“We are here to be heard”

By sunset on Thursday evening, the dozens of Immokalee workers in New York were joined by thousands of marchers. Native New Yorkers, faith leaders, workers from outside of Florida, and students on spring break from as far as Indiana proceeded in front of Peltz’s building chanting, drumming, and carrying signs urging onlookers to boycott Wendy’s, to support human rights, and to buy fair food. It was day five of the protest, and the marchers were energized as they made their way from Park Avenue to a park opposite the United Nations where the air boomed with the voices of five women on a makeshift stage who were rapping about rights and being American.

For Perez, it was gratifying to be surrounded with such a show of support. Now, she hopes that Wendy’s will finally agree to prioritize the rights of pickers like her.

“Wendy’s is supporting the problem. They buy tomatoes where respect doesn’t exist, where there are no rights for workers,” Perez said amid the noise. “Wendy’s says that tomatoes are more fresh, more delicious. But they don’t know about the life of the workers. We are here to be heard.”

This article was originally published at ThinkProgress on March 16, 2018. Reprinted with permission. 

About the Author: Gina Ciliberto is a writer based in New York City. She covers social justice issues for the Dominican Sisters of Hope, among others.


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Overtime for farmworkers passes California legislature, heads to governor’s desk

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LauraClawson

The California legislature has passed a bill that would give farmworkers the same overtime protections as other workers. Now the question is whether Gov. Jerry Brown, who has not taken a position on the proposal, will sign the expansion from the state’s current law, which requires employers to pay time-and-a-half after farmworkers put in 10 hours in a day or 60 hours in a week. Other workers get, and farmworkers stand to get, overtime pay after eight hours in a day or 40 in a week.

 
Getting this bill passed required serious legislative maneuvering by Assemblywoman Lorena Gonzalez:

The Assembly rejected the proposal in June, when eight Democrats opposed it and another six refused to vote. In what Gonzalez has described as an unprecedented move to revive the bill, she worked around the Legislature’s rules and reinserted the proposal in another bill, angering Republicans who objected to the breach in procedure.

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Gonzalez waged a social media campaign to pressure her Democratic colleagues to back AB1066; agreed to compromises to win votes, including giving small farms an extra three years to pay more overtime; and led a squad of Democratic allies in a 24-hour fast paying homage to the weeks long fast that legendary farmworker activist Cesar Chavez staged when the “Salad Bowl” strike of 1970 initially failed.

 

 

Federal law excludes agricultural workers from overtime protections, so California is already ahead—but these workers deserve the same protections and rights as everyone else.

This article originally appeared at DailyKOS.com on August 24, 2016. Reprinted with permission.

Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.


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Supreme Court’s E-Verify Decision Devastating for Employers, Immigrant Workers

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kari-lydersenImmigrants rights advocates and employers, including farmers, are lashing out at the Supreme Court’s May 26 decision upholding Arizona’s right to demand employers use the controversial e-Verify system, which is meant to confirm whether someone is in the country legally.

The decision also allowed Arizona to continue the so-called “business death penalty,” which entails denying a business license to employers found guilty more than once of violating a 2007 law against hiring undocumented workers.

The e-Verify system has been widely criticized for errors, including flagging legal and native-born residents as undocumented. That’s among the reasons Illinois sought to ban its use by private employers. A federal court shot down those efforts, but the Illinois legislature did pass a state law trying to safeguard against the misuse of the system.

All employers with federal contracts are required to use E-Verify, and Texas Republican Congressman Lamar Smith is among those pushing to make it mandatory nationally.

Immigrants rights groups are allied with employers – even those that they allege exploit undocumented immigrants – in stridently opposing mandatory e-Verify use. The Supreme Court decision was the result of a lawsuit filed by the Chamber of Commerce opposing Arizona’s law. The U.S. Chamber of Commerce and other employer groups also sued unsuccessfully over the mandate that E-Verify be used by federal contractors. Florida has proposed a bill similar to Arizona’s regarding E-Verify. The Hispanic Chamber of Commerce opposes it.

Agricultural employers and immigrants rights groups point out that the nation’s guest worker program and overall immigration system are so badly broken that agricultural growers will simply not be able to find the needed employees especially during harvest times if they really are barred from hiring undocumented workers.

Lynn Tramonte, deputy director of the group America’s Voice Education Fund, said in a press release:

Yesterday’s Supreme Court ruling is a dagger in the heart of Arizona agriculture.  If this type of law spreads nationwide, we will essentially deport the entire agriculture industry—including jobs held by Americans—and be forced to import more of our nation’s food supply. Passing a mandatory E-Verify law without comprehensive immigration reform will kill American jobs and farms, burden small businesses, reduce tax revenue, and drive undocumented workers further underground.

U.S. Agriculture Secretary Tom Vilsack made similar points in an op-ed:

As Secretary of Agriculture I have met farmers and ranchers all over the country who worry that our immigration system is broken. They are unable to find the necessary number of farmworkers and sometimes struggle to verify their work authorization papers – all while wondering if they’ll have enough help for their next harvest.

And while some American citizens step up and take these jobs, the truth is that even when farmers make their best efforts to recruit a domestic work force, few citizens express interest, and even fewer show up to spend long hours laboring in the hot sun.

In a twist on the misguided idea that immigrants “steal” American jobs, Vilsack described immigrant farm workers essentially protecting U.S. jobs through their crucial role on U.S. farms:

If American agriculture lost access to adequate farm labor, it could cost the industry as much as $9 billion each year. Already, some American producers are opening up operations in Mexico. So we must take action to prevent the further outsourcing of farm-related jobs.

Meanwhile, the Bay Citizen nonprofit news outlet described how lucrative wineries in Napa Valley, Calif., have found it in their own self-interest to treat undocumented workers fairly, rather than paying them as little as possible or sometimes not at all as is often the case in agriculture and other industries that hire large numbers of undocumented workers.

Emmy-winning producer Scott James reported:

Without migrant labor, most of it from Mexico, the wine producers in Napa would be hard pressed to fill a carafe, much less the valley’s nine million annual cases. Experts estimate that 8,000 to 12,000 illegal migrants reside (often seasonally) in Napa, although the number is impossible to confirm.

Ten years ago, they could be found living in the woods in makeshift camps, sleeping on fetid mattresses and drinking from dirty streams. Today they receive subsidized housing, or can reside in three tidy dormitory complexes near St. Helena and Yountville where up to 180 workers pay $12 a day for room and board.

This Blog Originally appeared in These Working Times on May 30, 2011. Reprinted with Permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.


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